EXHIBIT 7.1
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INDENTURE, dated as of _______, 200_ between ENCANA CORPORATION, a
corporation duly organized and existing under the laws of Canada (herein called
the "COMPANY"), having its principal office at 1800, 000 - 0xx Xxxxxx X.X.,
X.X. Xxx 0000, Xxxxxxx, Xxxxxxx X0X 0X0, and THE BANK OF NEW YORK, a New York
Corporation, as trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), which may be convertible into or exchangeable for any securities
of any Person (including the Company), to be issued in one or more series as
provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
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(5) words implying any gender shall include all genders; and
(6) the words Subsection, Section and Article refer to the
Subsections, Sections and Articles, respectively, of this Indenture unless
otherwise noted.
Certain terms, used principally in Article Three, are defined in that
Article.
"ACCELERATED INDEBTEDNESS" has the meaning specified in Section 501.
"ACT" when used with respect to any Holder, has the meaning specified
in Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 1005.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee pursuant to Section 612 to authenticate
Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of Canada,
will, if practicable, be The Globe & Mail, in the case of New York, New York
will, if practicable, be The Wall Street Journal (Eastern Edition), in the case
of the United Kingdom will, if practicable, be The Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be The
Luxembourg (Wort), in the English language or in an official language of the
country of publication, customarily published on each Business Day, whether or
not published on Saturdays, Sundays or holidays, and of general circulation in
Canada, New York, New York, the United Kingdom or Luxembourg, as applicable.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any
Business Day.
"BEARER SECURITY" means any Security except a Registered Security.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of that board of directors.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or any Assistant Corporate Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than Saturday,
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Sunday or any other day which is not a day on which commercial banking
institutions in that Place of Payment or other location are closed or required
by any applicable law or regulation or executive order to close.
"CALCULATION PERIOD" has the meaning specified in Section 311.
"CANADIAN TAXES" has the meaning specified in Section 1005.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or its
successor.
"COMMISSION" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY OFFICER" means any one of the Chairman, President, Chief
Executive Officer, Chief Financial Officer, Vice-President, Treasurer,
Assistant Treasurer, Corporate Secretary or Assistant Corporate Secretary of
the Company.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request or order
signed in the name of the Company by a Company Officer and delivered to the
Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
any Person on a consolidated basis (less applicable reserves and other properly
deductible items), after deducting therefrom:
(i) all current liabilities (excluding any indebtedness
classified as a current liability and any current liabilities
which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being
computed);
(ii) all goodwill, trade names, trademarks, patents, unamortized
debt discounts and expenses and other like intangibles; and
(iii) appropriate adjustments on account of minority interests of
other persons holding shares of the Subsidiaries of such
Person,
in each case, as shown on the most recent annual audited or quarterly unaudited
consolidated balance sheet of such Person computed in accordance with GAAP.
"CONVERSION DATE" has the meaning specified in Section 312(d).
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"CONVERSION EVENT" means the cessation of use of a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee, at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"COVENANT DEFEASANCE" has the meaning specified in Section 1403.
"CURRENCY" means any currency or currencies or composite currency
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"CURRENT ASSETS" means assets which in the ordinary course of business
are expected to be realized in cash or sold or consumed within 12 months.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" OR "DEPOSITARY FOR SECURITIES" means The Depository Trust
Company, or any successor thereto or any other Person designated pursuant to
Section 305.
"DOLLAR" OR "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be determined as
specified in Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(g).
"EUROCLEAR" means Euroclear Bank S.A./N.A., or its successor as
operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
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"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
"EXCHANGE DATE" has the meaning specified in Section 304.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York clearing house bank, designated pursuant to Section
301 or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex, facsimile
or a certificate setting forth (i) the applicable Market Exchange Rate and (ii)
the Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex or
facsimile) or signed (in the case of a certificate) by the Treasurer, any
Vice-President or any Assistant Treasurer of the Company.
"EXCLUDED HOLDER" has the meaning specified in Section 1005.
"EXTENSION NOTICE" has the meaning specified in Section 308.
"EXTENSION PERIOD" has the meaning specified in Section 308.
"FACILITIES" means any drilling equipment, production equipment and
platforms or mining equipment; pipelines, pumping stations and other pipeline
facilities; terminals, warehouses and storage facilities; bulk plants;
production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities, flares, stacks
and burning towers; floatation xxxxx, crushers and ore handling facilities;
tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other
marine, automotive, aeronautical and other similar moveable facilities or
equipment; computer systems and associated programs or office equipment; roads,
airports, docks (including drydocks); reservoirs and waste disposal facilities;
sewers; generating plants (including power plants) and electric lines;
telephone and telegraph lines, radio and other communications facilities;
townsites, housing facilities, recreation halls, stores and other related
facilities; and similar facilities and equipment of or associated with any of
the foregoing.
"FINAL MATURITY" has the meaning specified in Section 308.
"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising under:
(i) interest rate swap agreements, forward rate agreements,
floor, cap or collar agreements, futures or options,
insurance or other similar agreements or arrangements, or any
combination thereof, entered into by a Person relating to
interest rates or pursuant to which the price, value or
amount payable thereunder is dependent or based upon interest
rates in effect from time to time or fluctuations in interest
rates occurring from time to time;
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(ii) currency swap agreements, cross-currency agreements, forward
agreements, floor, cap or collar agreements, futures or
options, insurance or other similar agreements or
arrangements, or any combination thereof, entered into by a
Person relating to currency exchange rates or pursuant to
which the price, value or amount payable thereunder is
dependent or based upon currency exchange rates in effect
from time to time or fluctuations in currency exchange rates
occurring from time to time; and
(iii) commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar
agreements or arrangements, or any combination thereof,
entered into by a Person relating to one or more commodities
or pursuant to which the price, value or amount payable
thereunder is dependent or based upon the price of one or
more commodities in effect from time to time or fluctuations
in the price of one or more commodities occurring from time
to time.
"FIRST CURRENCY" has the meaning specified in Section 115.
"FOREIGN CURRENCY" means any Currency other than the Dollar.
"GAAP" means generally accepted accounting principles in Canada which
are in effect from time to time, unless such Person's most recent audited or
quarterly unaudited financial statements are not prepared in accordance with
generally accepted accounting principles in Canada, in which case GAAP shall
mean generally accepted accounting principles in the United States in effect
from time to time.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the government which issued the Currency in which
the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the government which issued the Currency in which the Securities of such
series are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of
such government payable in such Currency and are not callable or redeemable at
the option of the issuer thereof and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder
of a depository receipt; PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest or
principal of the Government Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular
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series of Securities established as contemplated by Section 301; PROVIDED,
HOWEVER, that, if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 114.
"LIEN" means, with respect to any properties or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such properties or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion of Dollars
into any Foreign Currency, the noon (New York time) buying rate for such
Foreign Currency for cable transfers quoted in New York, New York as certified
for customs purposes by the Federal Reserve Bank of New York and (ii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency,
the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either Xxx Xxxx, Xxx
Xxxx, Xxxxxx, Xxxxxxx or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the Exchange Rate Agent.
Unless otherwise specified with respect to any Securities pursuant to Section
301, in the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i) and (ii), the Exchange Rate Agent shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in Xxx Xxxx, Xxx Xxxx, Xxxxxx, Xxxxxxx
or another principal market for the Currency in question, or such other
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quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any Currency by reason of foreign exchange regulations or otherwise,
the market to be used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such securities.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"NON-RECOURSE DEBT" means indebtedness to finance the creation,
development, construction or acquisition of properties or assets and any
increases in or extensions, renewals or refinancings of such indebtedness,
PROVIDED that the recourse of the lender thereof (including any agent, trustee,
receiver or other Person acting on behalf of such lender) in respect of such
indebtedness is limited in all circumstances to the properties or assets
created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or collateral
connected with the properties or assets created, developed, constructed or
acquired and to which such lender has recourse.
"NOTICE OF DEFAULT" has the meaning specified in Section 501.
"OFFICER'S CERTIFICATE" means a certificate signed by any Company
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee, acting reasonably.
"OPTIONAL RESET DATE" has the meaning specified in Section 307.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"ORIGINAL STATED MATURITY" has the meaning specified in Section 308.
"OTHER CURRENCY" has the meaning specified in Section 115.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for which money in the
necessary amount relating to payment, redemption or repayment
at the option of the Holders has been deposited with the
Trustee or any Paying Agent (other than the
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Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons
appertaining thereto; PROVIDED that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser (as defined
in Article 8 of the UCC) in whose hands such Securities are
valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (B) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such date
of original issuance of the amount determined as provided in clause (A) above)
of such Security, (C) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
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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.
"PERMITTED LIENS" of any Person at any particular time means:
(i) Liens existing as of the date of this Indenture, or arising
thereafter pursuant to contractual commitments entered into
prior to such date;
(ii) Liens on Current Assets given in the ordinary course of
business to any financial institution or others to secure any
indebtedness payable on demand or maturing (including any
right of extension or renewal) within 12 months from the date
such indebtedness is incurred;
(iii) Liens in connection with indebtedness, which, by its terms,
is Non-Recourse Debt to the Company or any of its
Subsidiaries;
(iv) Liens existing on property or assets at the time of
acquisition (including by way of lease) by such Person,
PROVIDED that such Liens were not incurred in anticipation of
such acquisition;
(v) Liens or obligations to incur Liens (including under
indentures, trust deeds and similar instruments) on property
or assets of another Person existing at the time such other
Person becomes a Subsidiary of such Person, or is liquidated
or merged into, or amalgamated or consolidated with, such
Person or Subsidiary of such Person or at the time of the
sale, lease or other disposition to such Person or Subsidiary
of such Person of all or substantially all of the properties
and assets of such other Person, PROVIDED that such Liens
were not incurred in anticipation of such other Person
becoming a Subsidiary of such Person;
(vi) Liens upon property or assets of whatsoever nature other than
Restricted Property;
(vii) Liens upon property, assets or facilities used in connection
with, or necessarily incidental to, the purchase, sale,
storage, transportation or distribution of oil or gas, or the
products derived from oil or gas;
(viii) Liens arising under partnership agreements, oil and natural
gas leases, overriding royalty agreements, net profits
agreements, production payment agreements, royalty trust
agreements, master limited partnership agreements, farm-out
agreements, division orders, contracts for the sale,
purchase, exchange, storage, transportation, distribution,
gathering or processing of Restricted Property, unitizations
and pooling designations, declarations, orders and
agreements, development agreements, operating agreements,
production sales contracts (including security in respect of
take or pay or similar obligations thereunder), area of
mutual interest agreements, natural gas balancing or deferred
production agreements, injection, repressuring and recycling
agreements, salt water or other
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disposal agreements, seismic or geophysical permits or
agreements, which in each of the foregoing cases is customary
in the oil and natural gas business, and other agreements
which are customary in the oil and natural gas business,
PROVIDED in all instances that such Lien is limited to the
property or assets that are the subject of the relevant
agreement;
(ix) Liens on assets or property (including oil sands property)
securing: (A) all or any portion of the cost of acquisition
(directly or indirectly), surveying, exploration, drilling,
development, extraction, operation, production, construction,
alteration, repair or improvement of all or any part of such
assets or property, the plugging and abandonment of xxxxx and
the decommissioning or removal of structures or facilities
located thereon, and the reclamation and clean-up of such
properties, facilities and interests and surrounding lands
whether or not owned by the Company or its Restricted
Subsidiaries, (B) all or any portion of the cost of acquiring
(directly or indirectly), developing, constructing, altering,
improving, operating or repairing any assets or property (or
improvements on such assets or property) used or to be used
in connection with such assets or property, whether or not
located (or located from time to time) at or on such assets
or property, and (C) indebtedness incurred by the Company or
any of its Subsidiaries to provide funds for the activities
set forth in clauses (A) and (B) above, provided such
indebtedness is incurred prior to, during or within two years
after the completion of acquisition, construction or such
other activities referred to in clauses (A) and (B) above,
and (D) indebtedness incurred by the Company or any of its
Subsidiaries to refinance indebtedness incurred for the
purposes set forth in clauses (A) and (B) above. Without
limiting the generality of the foregoing, costs incurred
after the date hereof with respect to clauses (A) or (B)
above shall include costs incurred for all facilities
relating to such assets or property, or to projects, ventures
or other arrangements of which such assets or property form a
part or which relate to such assets or property, which
facilities shall include, without limitation, Facilities,
whether or not in whole or in part located (or from time to
time located) at or on such assets or property;
(x) Liens granted in the ordinary course of business in
connection with Financial Instrument Obligations;
(xi) Purchase Money Mortgages;
(xii) Liens in favor of the Company or any of its Subsidiaries to
secure indebtedness owed to the Company or any of its
Subsidiaries; and
(xiii) any extension, renewal, alteration, refinancing, replacement,
exchange or refunding (or successive extensions, renewals,
alterations, refinancings, replacements, exchanges or
refundings) of all or part of any Lien referred to in the
foregoing clauses; PROVIDED, HOWEVER, that (A) such new Lien
shall be limited to all or part of the property or assets
which was secured
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by the prior Lien plus improvements on such property or
assets and (B) the indebtedness, if any, secured by the new
Lien is not increased from the amount of the indebtedness
secured by the prior Lien then existing at the time of such
extension, renewal, alteration, refinancing, replacement,
exchange or refunding, plus an amount necessary to pay fees
and expenses, including premiums, related to such extensions,
renewals, alterations, refinancings, replacements, exchanges
or refundings.
"PERSON" means any individual, corporation, partnership, limited
liability company, unlimited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PLACE OF PAYMENT" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"PURCHASE MONEY MORTGAGE" of any Person means any Lien created upon
any property or assets of such Person to secure or securing the whole or any
part of the purchase price of such property or assets or the whole or any part
of the cost of constructing or installing fixed improvements thereon or to
secure or securing the repayment of money borrowed to pay the whole or any part
of such purchase price or cost of any vendor's privilege or Lien on such
property or assets securing all or any part of such purchase price or cost
including title retention agreements and leases in the nature of title
retention agreements; PROVIDED that (i) the principal amount of money borrowed
which is secured by such Lien does not exceed 100% of such purchase price or
cost and any fees incurred in connection therewith, and (ii) such Lien does not
extend to or cover any other property other than such item of property and any
improvements on such item.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security registered in the Security
Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
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"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"REQUIRED CURRENCY" has the meaning specified in Section 114.
"RESET NOTICE" has the meaning specified in Section 307.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and assigned to or employed
by the Trustee's corporate trust department, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a
primary nature located in the United States or Canada, and any facilities
located in the United States or Canada, directly related to the mining,
processing or manufacture of hydrocarbons or minerals, or any of the
constituents thereof, or the derivatives therefrom and includes Voting Shares
or other interests of a corporation or other Person which owns such property or
facilities, but does not include (i) any property or facilities used in
connection with or necessarily incidental to the purchase, sale, storage,
transportation or distribution of Restricted Property, (ii) any property which,
in the opinion of the Board of Directors, is not materially important to the
total business conducted by the Company and its Subsidiaries as an entirety, or
(iii) any portion of a particular property which, in the opinion of the Board
of Directors, is not materially important to the use or operation of such
property.
"RESTRICTED SECURITIES" means shares of stock or indebtedness of any
Restricted Subsidiary.
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of the
Company which owns at the time Restricted Property; PROVIDED, HOWEVER, such
term shall not include a Subsidiary of the Company if the amount of the
Company's share of Shareholders' Equity of such Subsidiary constitutes, at the
time of determination, less than 2% of the Consolidated Net Tangible Assets of
the Company.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; PROVIDED, however, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
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"SHAREHOLDERS' EQUITY" means the aggregate amount of shareholders'
equity (including but not limited to share capital, contributed surplus and
retained earnings) of a Person as shown on the most recent annual audited or
quarterly unaudited consolidated balance sheet of such Person and computed in
accordance with GAAP.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in Section 307.
"SUBSIDIARY" of any Person means, on any date, any corporation or
other Person of which Voting Shares or other interests carrying more than 50%
of the voting rights attached to all outstanding Voting Shares or other
interests are owned, directly or indirectly, by or for such Person or one or
more Subsidiaries thereof.
"SUBSTANTIAL COMPLETION" means, with respect to an improvement, the
point at which the improvement is ready for use or is being used for the
purpose for which it was intended.
"TRUST INDENTURE ACT" OR "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UCC" means the New York uniform commercial code in effect from time
to time.
"UNITED STATES" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"UNITED STATES PERSON" means an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not or which has
ceased to be a Restricted Subsidiary.
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"VALUATION DATE" has the meaning specified in Section 312(c).
"VICE-PRESIDENT", when used with respect to the Company or the
Trustee, means any vice-president, whether or not designated by a number or a
word or words added before or after the title "vice-president".
"VOTING SHARES" means shares of any class of any corporation carrying
voting rights under all circumstances, PROVIDED that, for the purposes of this
definition, shares which only carry the right to vote conditionally on the
happening of any event shall not be considered Voting Shares, nor shall any
shares be deemed to cease to be Voting Shares solely by reason of a right to
vote accruing to shares of another class or classes by reason of the happening
of such an event, or solely because the right to vote may not be exercisable
under the charter of the corporation.
"YIELD TO MATURITY" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any written application or written request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant, compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel
may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of, or representations by, an accountant or firm of accountants in
the employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which
such certificate or opinion may be based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or
more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing
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such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The
principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior
to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record
date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record
date, but only the Holders of
18
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; PROVIDED that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this
19
Indenture, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be sufficient giving of such notice for every
purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in New York, New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice
shall be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Trustee shall bind their successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York without regard to
principles of conflicts of law. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
PROVIDED that no additional interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 113. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has irrevocably designated and appointed CT Corporation
System, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("CT
CORPORATION") as its authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Securities or this
Indenture that may be instituted in any federal or New York state court located
in New York, New York or brought under federal or state securities laws or
brought by the Trustee (whether in its individual capacity or in its capacity
as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any
such court in any such suit or proceeding, and (iii) agrees that service of
process upon CT Corporation and written notice of said service to the Company
(mailed or delivered to the Company, Attention: General Counsel, at its
principal office specified in the first paragraph of this Indenture and in the
manner specified in Section 105 hereof), shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary
to continue such designation and appointment of CT Corporation in full force
and effect so long as any of the Securities shall be outstanding.
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To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Indenture or the Securities in any federal
or state court in the State of New York, Borough of Manhattan. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 114. CONVERSION OF CURRENCY.
(a) The Company covenants and agrees that the following
provisions shall apply to conversion of currency in the case of the
Securities and this Indenture:
(1) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes
necessary to convert into any other currency (the "JUDGMENT CURRENCY")
an amount due or contingently due under the Securities of any series
and this Indenture (the "REQUIRED CURRENCY"), then the conversion
shall be made at the rate of exchange prevailing on the Business Day
before the day on which a final judgment which is not appealable or is
not appealed is given or the order of enforcement is made, as the case
may be (unless a court shall otherwise determine).
(2) If there is a change in the rate of exchange
prevailing between the Business Day before the day on which the
judgment referred to in (1) above is given or an order of enforcement
is made, as the case may be (or such other date as a court shall
determine), and the date of receipt of the amount due, the Company
shall pay such additional (or, as the case may be, such lesser)
amount, if any, as may be necessary so that the amount paid in the
Judgment Currency when converted at the rate of exchange prevailing on
the date of receipt will produce the amount in the Required Currency
originally due.
(b) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Securities and this Indenture,
or any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders of
Securities and the Trustee harmless against any deficiency arising or
resulting from any variation in rates of exchange between (1) the date as
of which the equivalent of the amount in the Required Currency (other than
under this Subsection (b)) is calculated for the purposes of such
winding-up and (2) the final date for the filing of proofs of claim in
such winding-up. For the purpose of this Subsection (b) the final date for
the filing of proofs of claim in the winding-up of the Company shall be
the date fixed by the liquidator or otherwise in accordance with the
relevant provisions of applicable law as being the latest practicable date
as at which liabilities of the Company may be ascertained for such
winding-up prior to payment by the liquidator or otherwise in respect
thereto.
22
(c) The obligations contained in Subsections (a)(2) and (b) of
this Section shall constitute separate and independent obligations of the
Company from its other obligations under the Securities and this
Indenture, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or extension
granted by any Holder or Trustee from time to time and shall continue in
full force and effect notwithstanding any judgment or order or the filing
of any proof of claim in the winding-up of the Company for a liquidated
sum in respect of amounts due hereunder (other than under Subsection (b)
above) or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the Holders or
the Trustee, as the case may be, and no proof or evidence of any actual
loss shall be required by the Company or the applicable liquidator. In the
case of Subsection (b) above, the amount of such deficiency shall not be
deemed to be reduced by any variation in rates of exchange occurring
between the said final date and the date of any liquidating distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean the Bank of Canada
noon rate for purchases on the relevant date of the Required Currency with
the Judgment Currency, as reported on the "Exchange Rates--Daily noon
rates" page of the website of Bank of Canada (or by such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of
the parties to this Indenture) and includes any premiums and costs of
exchange payable.
SECTION 115. CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER CURRENCY")
which is required to purchase such amount in the First Currency at the Bank of
Canada noon rate as reported on the "Exchange Rates--Daily noon rates" page of
the website of Bank of Canada (or by such other means of reporting the Bank of
Canada noon rate as may be agreed upon by each of the parties to this
Indenture) on the date of determination.
SECTION 116. INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF
THE COMPANY EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future shareholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders as part of the consideration for
the issue of the Securities.
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SECTION 117. CONFLICT WITH THE TRUST INDENTURE ACT.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of
the Trust Indenture Act, through operation of Section 318(c) thereof, such
imposed duties shall control.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated and referred to
in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By _______________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified and contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon written instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon written instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
Section 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the
series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the Securities of the series may be
issued and on which the principal of the Securities of the series is payable;
(4) the rate or rates (whether fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from which such
interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date or
dates shall be determined, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice, if any,
to Holders regarding the determination of interest on a floating rate Security
and the manner of giving such notice, and the basis upon which interest shall
be calculated if other than on the basis of a 360-day year of twelve 30-day
months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York, New York where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable and, if different
than the location specified in Section 105, the place or places where notices
or demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served;
26
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of
the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the Currency in which, and other
terms and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations of
$5,000, the denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall be
denominated and the particular provisions applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and conditions upon
which, such election may be made, and the time and manner of determining the
exchange rate between the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(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;
27
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from, modifications of
or additions to Section 1009) of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may
be made, and if Securities of the series are to be issuable in global form, the
identity of any initial Depositary therefor;
(19) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and/or terms of such certificates,
documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether, under what circumstances and the Currency in which
the Company will pay Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect of any
tax, assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
28
(24) if the Securities of the series are to be convertible into or
exchangeable for any debt securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(25) if payment of the Securities will be guaranteed by any other
Person;
(26) the extent and manner, if any, to which payment on or in
respect of the Securities of the series will be senior or will be subordinated
to the prior payment of other liabilities and obligations of the Company; and
(27) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the requirements of the Trust Indenture Act or
the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to a Board Resolution (subject to Section
303) and set forth in such Officer's Certificate or in any such indenture
supplemental hereto. The Company may, from time to time, without notice or
consent of the Holders, create and issue additional Securities of a series so
that such additional Securities may be consolidated and form a single series
with the Securities of the same series initially issued by the Company and
shall have the same terms as to status, redemption and otherwise as the
Securities of the same series originally issued.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman, its President, its Chief Executive
Officer, its Chief Financial Officer or a Vice-President, together with any one
of the Corporate Secretary, or Assistant Corporate Secretary, the Treasurer or
an Assistant Treasurer. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
29
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER,
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit
A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, one or more Opinions
of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto as permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to one or more Board Resolutions or established in one or more
indentures supplemental hereto as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
30
(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.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as conclusively the officers
executing such Securities may determine, as
31
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for
a temporary Registered Security; and PROVIDED FURTHER, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London, England office of a depositary or common depositary
(the "COMMON DEPOSITARY") or the Depositary, as applicable, for the benefit of
Euroclear and Clearstream, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent 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
32
pursuant to Section 301); and PROVIDED FURTHER, that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier
than 15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or Clearstream. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euroclear or
Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301). Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to this paragraph
shall satisfy the certification requirements of the preceding two paragraphs of
this Section and of the third paragraph of Section 303 of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like principal
amount and tenor and evidencing the same indebtedness on the Exchange Date or
the date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal (or premium, if any) or interest, if
any, owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and Clearstream and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company in accordance with Section 1003.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable times,
the Security Register shall be open to inspection by the Trustee. The Trustee
is hereby initially appointed as security registrar (the "SECURITY REGISTRAR")
for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided. The Company shall have the right to
remove and replace from time to time the Security Registrar for any series of
Securities; PROVIDED that no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of Registered
Securities shall have been appointed by the Company and shall have accepted
such appointment by the Company. In the event that the Trustee shall not be or
shall cease to be the Security Registrar with respect to a series of
Securities, it shall have the right to examine the Security Register for such
series at all reasonable times. There shall be only one Security Register for
such series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Registered Securities of
the same series, of any authorized denominations and of a like principal amount
and tenor and evidencing the same indebtedness.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like principal amount and tenor and evidencing
the same indebtedness, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officer's Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like principal amount and tenor and evidencing
the same indebtedness, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, any such permitted exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
34
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like principal amount and tenor and
evidencing the same indebtedness of another authorized form and denomination,
as specified as contemplated by Section 301 and PROVIDED that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on
which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other Depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for 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
35
Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary for Securities of a series notifies the
Company that it is unwilling, unable or no longer qualifies to continue as
Depositary for Securities of such series or if at any time the Depositary for
Securities for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to the Securities for such
series. If a successor to the Depositary for Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, and the Trustee, as Security Registrar,
has received a written request from the Depositary or a participant in the
Depositary in accordance with the Depositary's customary procedures to issue
Securities in definitive form to such participant or other beneficial owner
specified by such participant to the Trustee in writing, the Depositary shall
no longer continue as Depositary with respect to the Securities for such series
and the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver individual Securities of such series in
certificated, fully registered form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the global Security
or Securities representing such series in exchange for such global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the global Security
or Securities representing such series in exchange for such global Security or
Securities.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee in writing.
The Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
36
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
Securities of that series under Section 1103 or 1203 and ending at the close of
business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor; PROVIDED that such Registered Security shall be
immediately surrendered for redemption, or (iv) to issue, register the transfer
of or exchange any Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be so
repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like principal amount and tenor and evidencing the
same indebtedness and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security, or, in case any such mutilated Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
37
coupon has been acquired by a protected purchaser (as defined in Article 8 of
the UCC), the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security for which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like principal amount and tenor and
evidencing the same indebtedness and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; PROVIDED, HOWEVER, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and the Holders of
such Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS
PRESERVED; OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002; PROVIDED, HOWEVER, that each installment of the principal of
(and premium, if any, on) and interest,
38
if any, on any Registered Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Security Register or (ii) wire
transfer to an account of the person entitled to receive such payment
located in the United States maintained by the payee of a Holder of
$5,000,000 or more in aggregate principal amount of the Securities of such
series (with wire transfer instructions provided to the Trustee not less
than 15 days prior to payment of interest by wire transfer); provided
FURTHER, that principal paid in relation to any Security redeemed at the
option of the Company pursuant to Article Eleven, or paid at Maturity,
shall be paid to the Holder of such Security only upon presentation and
surrender of such Security to such office or agency referred to in this
Section 307(a).
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date, and such defaulted interest and, if applicable, interest
on such defaulted interest (to the extent lawful) at the rate specified in the
Securities of such series (such defaulted interest and, if applicable, interest
thereon herein collectively called "DEFAULTED INTEREST") may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an 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
39
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose name the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) on any Security of
such series may be reset by the Company on the date or dates specified on
the face of such Security (each an "OPTIONAL RESET DATE"). The Company may
exercise such option with respect to such Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note. Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the
"RESET NOTICE") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or
such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional
Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each
such period a "SUBSEQUENT INTEREST PERIOD"), including the date or dates
on which or the period or periods during which and the price or prices at
which such redemption may occur during the Subsequent Interest Period.
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
40
validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until
the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such
Security (each an "EXTENSION PERIOD") up to but not beyond the date (the "FINAL
MATURITY") set forth on the face of such Security. The Company may exercise
such option with respect to any Security by notifying the Trustee of such
exercise at least 50 but not more than 60 days prior to the Stated Maturity of
such Security in effect prior to the exercise of such option (the "ORIGINAL
STATED MATURITY"). If the Company exercises such option, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of such
Security not later than 40 days prior to the Original Stated Maturity a notice
(the "EXTENSION NOTICE") indicating (i) the election of the Company to extend
the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if
any, applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
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,
41
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension Notice, the Holder
may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever
(except for determining whether the payment of Additional Amounts is required),
whether or not such Security be overdue, and none of the Company, the Trustee
or any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Depositary for Securities may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such
global Security for all purposes whatsoever (except for determining whether the
payment of Additional Amounts is required). None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding anything to the contrary in this Indenture, the
Depositary or its nominee, as a Holder of a global Security, may grant proxies
and otherwise authorize any Person (including owners of beneficial interests in
the Securities) to take any action that the Depositary or its nominee, as a
Holder of a global Security, is entitled to take under this Indenture or the
Securities, PROVIDED FURTHER that, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
global Security or impair, as between such Depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such global Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or
42
future sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities and coupons so delivered
to the Trustee shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary procedures and certification of
their disposal delivered to the Company unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities shall be
computed on the basis of a 360 day year of twelve 30 day months. Solely for the
purposes of the INTEREST ACT (Canada), the yearly rate of interest to which
interest calculated under a Security for a period of less than one year on the
basis of a year of 360 days consisting of twelve 30 day periods (the
"CALCULATION PERIOD") is equivalent is such rate of interest multiplied by a
fraction of which (i) the numerator is the product of (A) the actual number of
days in the year commencing on the first day of such period, multiplied by (B)
the sum of (y) the product of 30 multiplied by the number of complete months
elapsed in such period and (z) the actual number of days elapsed in any
incomplete month in such period; and (ii) the denominator is the product of (A)
360 multiplied by (B) the actual number of days in such period.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below,
and with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such series will
be made in the Currency in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant
to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal
of (or premium, if any) or interest, if any, on such Registered Securities
in any of the Currencies which may be designated for such election by
delivering to the Trustee a written election with signature guarantees and
in the applicable form established pursuant to Section 301, not later than
the close of
43
business on the Election Date immediately preceding the applicable payment
date. If a Holder so elects to receive such payments in any such Currency,
such election will remain in effect for such Holder or any transferee of
such Holder until changed by such Holder or such transferee by written
notice to the Trustee (but any such change must be made not later than the
close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment
date and no such change of election may be made with respect to payments
to be made on any Registered Security of such series with respect to which
an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to
which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of
business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon
as practicable after the Election Date of the aggregate principal amount
of Registered Securities for which Holders have made such written
election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant
to Section 301, then, unless otherwise specified pursuant to Section 301,
not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the
Currency in which Registered Securities of such series are payable, the
respective aggregate amounts of principal of (and premium, if any) and
interest, if any, on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in respect of the
Registered Securities as to which the Holders of Registered Securities of
such series shall have elected to be paid in another Currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above
has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officer's Certificate in respect of the Dollar
or Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange
Rate in effect on the third Business Day (the "VALUATION DATE")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above,
then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities
denominated or payable in such Foreign Currency occurring after the last
date on which such Foreign Currency was used (the "CONVERSION DATE"), the
Dollar shall be the Currency of payment for use on each such payment date.
Unless otherwise specified
44
pursuant to Section 301, the Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be the Dollar
Equivalent of the Foreign Currency as determined by the Exchange Rate
Agent in the manner provided in paragraph (f) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have
been made in the absence of such election; and if a Conversion Event
occurs with respect to the Currency in which payment would have been made
in the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) above.
(f) The "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) For purposes of this Section 312, "ELECTION DATE" shall mean
the date for any series of Registered Securities as specified pursuant to
clause (13) of Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency and the Market Exchange Rate as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE
AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities,
45
or as so required, at least one Exchange Rate Agent. The Company will
cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section
301 for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued Currency into the
applicable payment Currency for the payment of principal (and premium, if
any) and interest, if any, pursuant to Section 312.
(b) The Company shall have the right to remove and replace from
time to time the Exchange Rate Agent for any series of Securities. No
resignation of the Exchange Rate Agent and no appointment of a successor
Exchange Rate Agent pursuant to this Section shall become effective until
the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents
with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or more or all of such series and
that, unless otherwise specified pursuant to Section 301, at any time
there shall only be one Exchange Rate Agent with respect to the Securities
of any particular series that are originally issued by the Company on the
same date and that are initially denominated and/or payable in the same
Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto and any right to receive Additional Amounts as contemplated by Section
1005) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(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 Xxxxxxx 000, (xx) Securities and coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Xxxxxxx 000, (xxx) 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
46
whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) (1) all Securities of such series and, in the case
of (i) or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company in respect of such series; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the 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
47
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is specifically deleted or modified in or
pursuant to a supplemental indenture, Board Resolution or Officer's Certificate
establishing the terms of such series pursuant to Section 301 of this
Indenture:
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon becomes
due and payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture in respect of the Securities of
that series (other than a covenant or warranty a default in the
performance of which, or the breach of which, is specifically dealt with
elsewhere in this Indenture), and continuance of such default or breach
for a period of 60 days after the receipt by the Company of written notice
specifying such default or breach, and requiring it to be remedied and
stating that such notice is a "NOTICE OF DEFAULT" hereunder (i) to the
Company (attention of the General Counsel to the Company via facsimile,
with a hard copy then sent, by registered or certified mail) by the
Trustee or (ii) to the Company (in the same manner) and the Trustee by the
Holders of at least 25% in principal amount of all Outstanding Securities
of any series affected thereby; or
(4) if an event of default (as defined in any indenture or
instrument under which the Company or any of its Restricted Subsidiaries
has at the time of this Indenture or shall thereafter have outstanding any
indebtedness for borrowed money) shall happen and be continuing, or the
Company or any of its Restricted Subsidiaries shall have failed to pay
principal amounts with respect to such indebtedness at maturity and such
event of default or failure to pay shall result in such indebtedness being
declared due and payable or otherwise being accelerated, in either event
so that an amount in excess of the greater of $75,000,000 and 2% of the
Shareholders' Equity of the Company shall be or become due and payable
upon such declaration or otherwise accelerated prior to the date on which
the same would otherwise have become due and payable (the "ACCELERATED
INDEBTEDNESS"), and such acceleration shall not be rescinded or annulled,
or such event of default or failure to pay under such indenture or
instrument shall not be remedied or
48
cured, whether by payment or otherwise, or waived by the holders of such
Accelerated Indebtedness, then (a) if the Accelerated Indebtedness shall
be as a result of an event of default which is not related to the failure
to pay principal or interest on the terms, at the times and on the
conditions set out in any such indenture or instrument, it shall not be
considered an Event of Default for purposes of this Indenture until 30
days after such indebtedness has been accelerated, or (b) if the
Accelerated Indebtedness shall occur as a result of such failure to pay
principal or interest or as a result of an event of default which is
related to the failure to pay principal or interest on the terms, at the
times, and on the conditions set out in any such indenture or instrument,
then (i) if such Accelerated Indebtedness is, by its terms, Non-Recourse
Debt to the Company or its Restricted Subsidiaries, it shall not be
considered an Event of Default for purposes of this Indenture; or (ii) if
such Accelerated Indebtedness is recourse to the Company or its Restricted
Subsidiaries, any requirement in connection with such failure to pay or
event of default for the giving of notice or the lapse of time or the
happening of any further condition, event or act under such other
indenture or instrument in connection with such failure to pay principal
or an event of default shall be applicable together with an additional
seven days before being considered an Event of Default for purposes of
this Indenture; or
(5) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the COMPANIES' CREDITORS
ARRANGEMENT ACT (Canada) or any other applicable insolvency law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the COMPANIES'
CREDITORS ARRANGEMENT ACT (Canada) or any other applicable insolvency law,
or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501 with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such affected series may,
subject to any subordination provisions thereof, declare the principal amount
49
(or, if the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series, and all
accrued and unpaid interest thereon to the date of such acceleration, to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)):
(A) all overdue interest, if any, on all Outstanding
Securities of that series (or of all series, as the case may be) and
any related coupons,
(B) all unpaid principal of (and premium, if any) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest, if any, at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Securities of
that series (or of all series, as the case may be) which have become due solely
by such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(4) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall
50
have been given to the Trustee by the Company and countersigned by the holders
of such indebtedness or a trustee, fiduciary or agent for such holders, within
30 days after such declaration of acceleration in respect of the Securities,
and no other Event of Default has occurred during such 30-day period which has
not been cured or waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, and interest on any overdue principal (and premium,
if any) and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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
51
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be specified in
the terms of such series, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
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;
52
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, if any, respectively;
and
THIRD: The balance, if any, to the Company or to such Person or
Persons as the Company instructs in writing.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, the Securities of any series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series in the case of any Event of
Default described in Section 501, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series in the
case of any Event of Default described in Section 501;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in Section 501, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
(PREMIUM, IF ANY) AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article
Fourteen) and in such Security, of the principal of (and
53
premium, if any) and (subject to Section 307) interest, if any, on such
Security or payment of such coupon on the respective Stated Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Article Six, with respect to the Securities of any series,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, relating to or arising
under Section 501, PROVIDED that in each case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
54
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in Section 501, and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder, by acceptance of
a Security, shall be deemed to have agreed that, in any suit for the
enforcement of any right or remedy under this Indenture, or any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, any
court may, in its discretion, require the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; PROVIDED,
HOWEVER, that the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate Securities representing more than 10% of the
aggregate principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of any
installment of interest on any Security on or after the Stated Maturity thereof
expressed in such Security or for the enforcement of the payment of the
principal of such Security at the Stated Maturity therefore.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security
of such series or in the payment of any sinking fund installment with respect
to Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Securities of such series and any related coupons, and so
advises the Company in writing; and PROVIDED FURTHER, that in the case of any
Default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
SECTION 602. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred,
shall undertake to perform with respect to the Securities of any series,
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the
56
Trustee and conforming to the requirements of this Indenture and the
Trust Indenture Act;
but in the case of any such certificates or opinions that by any
provision hereof or Section 314 of the TIA are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by them in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount
of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture; and
(4) notwithstanding anything contained herein to the contrary,
subject to the provisions of TIA Sections 315(a) through 315(d), the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, except to the
extent expressly provided herein to the contrary, every provision of this
Indenture relating to the conduct or effecting the liability or affording
protection to the Trustee, shall be subject to the provisions of this
Section.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may, in good faith, rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
57
(4) before the Trustee acts or refrains from acting, the Trustee
may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(9) except as otherwise specifically provided herein, (i) all
references in this Indenture to the Trustee shall be deemed to refer to the
Trustee in its capacity as Trustee and in its capacities as Security Registrar,
Authenticating Agent and Paying Agent and (ii) every provision of this
Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacities as Paying
Agent, Authenticating Agent and Security Registrar.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
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SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. A
Trustee that has resigned or was removed shall remain subject to TIA Section
311(a).
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
the Trustee and the Company shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including, without limitation, the
reasonable compensation and the expenses and disbursements of its agents and
counsel) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, the performance of its duties hereunder and/or the exercise of its
rights hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5), the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such
services are intended to constitute expenses of
59
administration under any applicable U.S. or Canadian federal, state or
provincial bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture, the payment of the Securities and the resignation or removal of the
Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus (together with that of its parent) of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 610 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall acquire any conflicting interest
as defined in TIA Section 310(b) and fail to comply with the
provisions of TIA Section 310(b)(i), or
(2) the Trustee shall fail to comply with the provisions
of the TIA Section 310(b) after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
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(4) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of such
Trustee or of its property shall be appointed or any public officer
shall take charge or control of such Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities or the Securities of such series, or (ii) subject to TIA Section
315(e), any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees. The following indentures shall be deemed to be
specifically described herein for the purposes of clause (i) of the second
provision contained in TIA Section 310(b): (a) Indenture, dated as of September
15, 2000, between Alberta Energy Company Ltd. and The Bank of New York, as
trustee, as amended by a supplemental indenture, dated as of January 1, 2003,
between the Company and The Bank of New York, as trustee, (b) Indenture, dated
as of October 26, 2001, between Alberta Energy Company Ltd. and The Bank of New
York, as trustee, as amended by a supplemental indenture, dated as of January
1, 2003, between the Company and The Bank of New York, as trustee, and (c)
Indenture, dated as of October 2, 2003, between the Company and The Bank of New
York, as trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee 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.
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SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become 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
62
successor Trustee all rights, powers and trusts referred to in paragraph
(i) or (ii) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In case any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; PROVIDED, HOWEVER, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 612. AUTHORIZATION OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may authorize an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series and the Trustee shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 106. Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such authorization shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or
63
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may authorize a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such authorization to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon acceptance
of its authorization hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
authorized unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an authorization with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated and referred to
in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ________________________
as Authenticating Agent
By ________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee (1)
not more than 15 days after each Regular Record Date a list, in such form as
the Trustee may reasonably require, of the names and addresses of Holders of
Registered Securities as of such Regular Record Date; PROVIDED, HOWEVER, that
the Company shall not be obligated to furnish or cause to be furnished such
list at any time that the list shall not differ in any respect from the most
recent list furnished to the Trustee by the Company and at such times as the
Trustee is acting as Security Registrar for the applicable series of Securities
and (2) at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished.
SECTION 702. PRESERVATION OF LIST OF NAMES AND ADDRESSES OF HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Registered Securities contained in the most recent list furnished to it as
provided in Section 701 and as to the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Security
Registrar for the applicable series of Securities (if acting in such capacity).
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
SECTION 703. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 704. REPORTS BY TRUSTEE.
(a) Within 60 days after [________] 15 of each year commencing
with the first [________] 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit to the Holders of
Registered Securities, in the manner and to the
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extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such [________] 15 if required by Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of such report shall, at the time of such transmission
to the Holders of Registered Securities, be filed by the Trustee with the
Company (Attention: General Counsel), with each securities exchange upon
which any of the Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee in writing when the
Securities become listed on any stock exchange.
SECTION 705. REPORTS BY THE COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies, which may be in
electronic format, of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations;
(c) notwithstanding that the Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules
and regulations promulgated by the Commission, the Company shall provide
the Trustee:
(1) within 140 days after the end of each fiscal year, the
information required to be contained in annual reports on Form 20-F, Form
40-F or Form 10-K as applicable (or any successor form); and
(2) within 65 days after the end of each of the first three
fiscal quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form) which, regardless
of applicable requirements, shall, at a minimum, contain such information
required to be provided in quarterly reports under the laws of Canada or
any province thereof to security holders of a company with securities
listed on the Toronto Stock Exchange, whether or not the Company has any
of its securities so listed.
Such reports, to the extent permitted by the rules and regulations of
the Commission, will be prepared in accordance with Canadian disclosure
requirements and
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GAAP; PROVIDED, HOWEVER, that the Company shall not be obligated to file
such reports with the Commission if the Commission does not permit such
filings;
(d) transmit to all Holders of Registered Securities, in the
manner and to the extent provided in Section 313(c) of the TIA, within 15
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate or amalgamate with or merge into or
enter into any statutory arrangement with any other corporation, or convey,
transfer or lease all or substantially all of its properties and assets to any
Person, unless:
(1) the entity formed by or continuing from such consolidation or
amalgamation or into which the Company is merged or with which the Company
enters into such statutory arrangement or the Person which acquires or leases,
all or substantially all of the Company's properties and assets (A) shall be a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any state thereof or the District of Columbia
or the laws of Canada or any province or territory thereof, or, if such
consolidation, amalgamation, merger, statutory arrangement or other transaction
would not impair the rights of Holders, in any other country, PROVIDED that if
such successor entity is organized under the laws of a jurisdiction other than
the United States, any state thereof or the District of Columbia, or the laws
of Canada or any province or territory thereof, the successor entity assumes
the Company's obligations under the Securities and this Indenture to pay
Additional Amounts, including the name of such successor jurisdiction in
addition to Canada in each place that Canada appears in Section 1005 and (B)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, or shall assume
by operation of law, the Company's obligation for the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the
Securities and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such
transaction, no Default or Event of Default, shall have happened and be
continuing; and
(3) the Company or such Person shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
such amalgamation, statutory arrangement, consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
This Section shall only apply to a merger, amalgamation, statutory
arrangement or consolidation in which the Company is not the surviving
corporation and to conveyances, leases and transfers by the Company as
transferor or lessor. For greater certainty, the Company shall be
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considered to be the surviving corporation in the event of a statutory
amalgamation by the Company with any Subsidiary wholly-owned by it.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any amalgamation or consolidation by the Company with or merger
by the Company into any other corporation or any conveyance, transfer or lease
all or substantially all of the properties and assets of the Company to any
Person in accordance with Section 801, the successor Person formed by such
amalgamation or consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person
which shall theretofore become such in the manner described in Section 801),
except in the case of a lease, shall be discharged of all obligations and
covenants under this Indenture and the Securities and the coupons and may be
dissolved and liquidated.
SECTION 803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such amalgamation, consolidation or statutory arrangement
of the Company with or merger of the Company into any other corporation, or
upon any conveyance, lease or transfer of all or substantially all of the
property of the Company to any other Person, any Restricted Property of the
Company, or any Restricted Securities owned by the Company immediately prior
thereto, would thereupon become subject to any Lien, then unless such Lien
could be created pursuant to Section 1006 without equally and ratably securing
the Securities, the Company, prior to or simultaneously with such
consolidation, amalgamation, statutory arrangement, merger, conveyance, lease
or transfer, will, as to such Restricted Property or Restricted Securities,
secure the Securities Outstanding hereunder (together with, if the Company
shall so determine, any other indebtedness of the Company now existing or
hereafter created which is not subordinate to the Securities) equally and
ratably with (or prior to) the indebtedness which upon such consolidation,
amalgamation, merger, statutory arrangement, conveyance, lease or transfer is
to become secured as to such Restricted Property or Restricted Securities by
such Lien, or will cause such Securities to be so secured; PROVIDED that, for
the purpose of providing such equal and ratable security, the principal amount
of Original Issue Discount Securities and Indexed Securities shall mean that
amount which would at the time of making such effective provision be due and
payable pursuant to Section 502 and the terms of such Original Issue Discount
Securities and Indexed Securities upon a declaration of acceleration of the
Maturity thereof, and the extent of such equal and ratable security shall be
adjusted, to the extent permitted by law, as and when said amount changes over
time pursuant to the terms of such Original Issue Discount Securities and
Indexed Securities.
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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 Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 803 or 1006 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 610(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
(11) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising hereunder or
in any supplemental indenture; PROVIDED such action shall not adversely
affect the interests of the Holders of Securities of any series and any
related coupons in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of a series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture which affect such series of
Securities or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of such series,
(1) change the Stated Maturity of the principal of (or premium,
if any) or any installment of interest on any Security of such series
(except to the extent provided by Section 308 herein, if applicable), or
reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 1005 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security of such series that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security of such series, or
change any Place of Payment where, or the Currency in which, any Security
of such series or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or
Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
301 herein, or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting with respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each
Outstanding Security of such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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.
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL (PREMIUM, IF ANY) AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable, and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in New York, New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served
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and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment; PROVIDED,
HOWEVER, that, if the Securities of that series are listed on any securities
exchange located outside the United States and such securities exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible and exchangeable may be
surrendered for conversion or exchange, as applicable and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish in writing the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that,
if the Securities of a series are payable in Dollars, payment of principal of
(and premium, if any) and interest, if any, on any Bearer Security shall be
made at the office of the Company's Paying Agent in New York, New York if (but
only if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities as contemplated by Section 301 with respect to a
series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the Corporate Trust Office in New York, New York and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other
than Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of such series
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
(or any other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any) or interest, if any, on
the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent,
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such sums to be held by the Trustee upon the same trusts as those upon which
sums were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years (or such shorter period as may be specified
in the applicable abandoned property statutes) after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 140 days after the end
of each fiscal year, a brief certificate from the Chief Executive Officer, the
Chief Financial Officer or the Controller of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. ADDITIONAL AMOUNTS.
(a) Unless otherwise provided pursuant to Section 301, all
payments made by or on behalf of the Company under or with respect to the
Securities of any series will be made free and clear of and without withholding
or deduction for or on account of any present or future tax, duty, levy,
impost, assessment or other governmental charge (including penalties, interest
and other liabilities related thereto) imposed or levied by or on behalf of the
Government of Canada or of any province or territory thereof or by any
authority or agency therein or thereof having power to tax (hereinafter
"CANADIAN TAXES"), unless the Company is required to withhold or deduct
Canadian Taxes by law or by the interpretation or administration thereof. If
the Company is so required to withhold or deduct any amount for or on account
of Canadian Taxes from any payment made under or with respect to the
Securities, the Company will pay to each Holder as additional interest such
additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that the net
amount received by each Holder after such withholding or deduction (and after
deducting any Canadian Taxes on such Additional Amounts) will not be less than
the amount the Holder would have received if such Canadian Taxes had not been
withheld or deducted. However, no Additional Amounts will be payable with
respect to a payment made to a Holder (such Holder, an "EXCLUDED HOLDER") in
respect of the beneficial owner thereof:
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(1) with which the Company does not deal at arm's length for the
purposes of the INCOME TAX ACT (Canada) at the time of the making of such
payment;
(2) which is subject to such Canadian Taxes by reason of the
Holder being a resident, domicile or national of, or engaged in business or
maintaining a permanent establishment or other physical presence in or
otherwise having some connection with Canada or any province thereof otherwise
than by the mere holding of Securities or the receipt of payments thereunder;
or
(3) which is subject to such Canadian Taxes by reason of the
Holder's failure to comply with any certification, identification, information,
documentation or other reporting requirements if compliance is required by law,
regulation, administrative practice or an applicable treaty as a precondition
to exemption from, or a reduction in the rate of deduction or withholding of,
such Canadian Taxes.
The Company will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
The Company will furnish to the Holders of the Securities, within 60
days after the date the payment of any Canadian Taxes is due pursuant to
applicable law, certified copies of tax receipts or other documents evidencing
such payment by the Company.
(b) The Company will indemnify and hold harmless each Holder
(other than an Excluded Holder) and, upon written request, reimburse each such
Holder for the amount excluding any of Additional Amounts that have been
previously been paid by the Company with respect thereto of:
(1) the payment of any Canadian Tax, together with any interest,
penalties and reasonable expenses in connection therewith; and
(2) any Canadian Taxes imposed with respect to any reimbursement
under clause (1) in this paragraph, but excluding any such Canadian Taxes on
such Holder's net income.
At least five (5) days prior to each date on which any payment under
or with respect to the Securities is due and payable, if the Company will be
obligated to pay Additional Amounts with respect to such payment, the Company
will deliver to the Trustee an Officer's Certificate stating the fact that such
Additional Amounts will be payable and specifying the amounts so payable and
will set forth such other information necessary to enable the Trustee to pay
such Additional Amounts to Holders on the payment date.
Notwithstanding the foregoing, no Additional Amounts or indemnity
amounts will be payable in excess of Additional Amounts or indemnity amounts
which would be required if the Holder of the Securities was a resident of the
United States for purposes of the Canada-U.S. Income Tax Convention (1980), as
amended.
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Wherever in this Indenture or the Securities there is mentioned, in
any context, the payment of principal (and premium, if any), interest or any
other amount payable under or with respect to a Security, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
SECTION 1006. LIMITATION ON LIENS.
So long as any Securities are Outstanding and subject to the terms of
this Indenture, the Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise have outstanding any Lien
securing any indebtedness for borrowed money or interest thereon (or any
liability of the Company or such Restricted Subsidiaries under any guarantee or
endorsement or other instrument under which the Company or such Restricted
Subsidiaries are contingently liable, either directly or indirectly, for
borrowed money or interest thereon), other than Permitted Liens, without also
simultaneously or prior thereto securing, or causing such Restricted
Subsidiaries to secure, indebtedness under this Indenture so that the
Securities are secured equally and ratably with or prior to such other
indebtedness or liability, except that the Company and its Restricted
Subsidiaries may incur a Lien to secure indebtedness for borrowed money without
securing the Securities if, after giving effect thereto, the principal amount
of indebtedness for borrowed money secured by Liens created, incurred or
assumed after the date hereof and otherwise prohibited by this Indenture does
not exceed 10% of the Company's Consolidated Net Tangible Assets.
Notwithstanding the foregoing, transactions such as the sale
(including any forward sale) or other transfer of: (i) oil, gas, minerals or
other resources of a primary nature, whether in place or when produced, for a
period of time until, or in an amount such that, the purchaser will realize
therefrom a specified amount of money or a specified rate of return (however
determined), or a specified amount of such oil, gas, minerals, or other
resources of a primary nature, or (ii) any other interest in property of the
character commonly referred to as a "PRODUCTION PAYMENT", will not constitute a
Lien and will not result in the Company or a Restricted Subsidiary being
required to secure the Securities.
SECTION 1007. PAYMENT OF TAXES.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment or charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1008. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Restricted Subsidiary; PROVIDED, however, that the Company shall not be
required to preserve any such right or franchise if the
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Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries as a whole.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Section 803 or Sections 1006 through 1008
inclusive or, as specified pursuant to Section 301(17) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to
Section 301(16) or Section 301(17) in connection with Securities of such
series, if before the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Securities of any series, by
Act of such Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee to Holders of Securities of such series in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities
and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities of such series to be redeemed
and shall deliver to the Trustee such documentation and records as shall enable
the Trustee to select the Securities to be redeemed pursuant to Section 1103.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal
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amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice in the manner provided in
Section 106 to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section 1106
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
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(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on such Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
At or prior to 10:00 a.m. (New York time) on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the
Redemption Price of, and accrued interest, if any, on all the Securities which
are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED FURTHER, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
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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.
SECTION 1108. TAX REDEMPTION.
Unless otherwise specified pursuant to Section 301, the Company shall
have the right to redeem, at any time, the Securities of a series, in whole but
not in part, at a redemption price equal to the principal amount thereof
together with accrued and unpaid interest to the date fixed for redemption,
upon the giving of a notice as described below, if (1) the Company (or its
successor) determines that (a) as a result of any change in or amendment to the
laws (or any regulations or rulings promulgated thereunder) of Canada or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change or amendment is announced or
becomes effective on or after a date specified pursuant to Section 301, if any
date is so specified, the Company has or will become obligated to pay, on the
next succeeding date on which interest is due, Additional Amounts pursuant to
Section 1005 or (b) on or after a date specified pursuant to Section 301, any
action has been taken by any taxing authority of, or any decision has been
rendered by a court of competent jurisdiction in, Canada or any political
subdivision or taxing authority thereof or therein, including any of those
actions specified in (a) above, whether or not such action was taken or
decision was rendered with respect to the Company, or any change, amendment,
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application or interpretation shall be officially proposed, which, in any such
case, in the Opinion of Counsel to the Company, will result in the Company
becoming obligated to pay, on the next succeeding date on which interest is
due, Additional Amounts with respect to any Security of such series and (2) in
any such case, the Company in its business judgment determines that such
obligation cannot be avoided by the use of reasonable measures available to the
Company; PROVIDED, HOWEVER, that (i) no such notice of redemption may be given
earlier than 60 or later than 30 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts were a payment in
respect of the Securities then due, and (ii) at the time such notice of
redemption is given, such obligation to pay such Additional Amounts remains in
effect.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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.
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SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is
to be satisfied by delivering or crediting Securities of that series pursuant
to Section 1202 (which Securities will, if not previously delivered, accompany
such certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
On or prior to 10:00 a.m. (New York time) on any sinking fund payment
date, the Company shall pay to the Trustee or a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) in cash a sum equal to any interest that will accrue
to the date fixed for redemption of Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with
any unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the
next succeeding sinking fund payment date or, at the request of the Company,
shall be applied at any time or from time to time to the purchase of Securities
of such series, by public or private purchase, in the open market or otherwise,
at a purchase price for such Securities (excluding accrued interest and
brokerage commissions, for which the Trustee or any Paying Agent will be
reimbursed by the Company) not in excess of the principal amount thereof.
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ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places or which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the
Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
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SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repayment Date;
provided, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER, that, in the case of
Registered Securities, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the 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
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or Securities of the same series, of any authorized denomination specified by
the Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply
to each series of Securities, and the Company may, at its option, effect
defeasance (as defined below) of the Securities of or within a series under
Section 1402, or covenant defeasance (as defined below) of or within a series
under Section 1403 in accordance with the terms of such Securities and in
accordance with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "DEFEASANCE"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Outstanding
Securities and any related coupons, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the
trust fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities and any related coupons when such payments
are due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1005,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligation under Section 607 and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Section 803 and Sections 1006 through
1008 inclusive and, if specified pursuant to Section 301, its obligations under
any other covenant, with respect to such Outstanding
86
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and
such Securities and any related coupons shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "OUTSTANDING" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any related coupons, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(3) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and
any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any related coupons, (A) an amount (in such Currency in which such
Securities and any related coupons are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities are then
specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment of principal of (and premium, if any), and interest, if any,
under such Securities and any related coupons, money in an amount, or (C)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants (which shall be
expressed in a written certification thereof delivered to the Company,
that is attached to an Officer's Certificate delivered to the Trustee), to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities and
any related coupons on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest, if any, and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
related coupons on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and any
related coupons; PROVIDED that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such Government
Obligations to said payments with respect to such Securities and any
related coupons. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1102 hereof, a notice of its election
to redeem all or any portion of such Outstanding Securities at a future
date in accordance with the terms
87
of the Securities of such series and Article Eleven hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given, shall
be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing on
the date of such deposit or, insofar as paragraphs (5) and (6) of Section
501 are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
of execution of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(5) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(6) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the case may be)
have been complied with.
(7) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the Holders of such Outstanding Securities will
not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(8) Either the Company has delivered to the Trustee an Opinion of
Counsel in Canada or a ruling from Canada Revenue Agency to the effect
that the Holders of such Outstanding Securities will not recognize income,
gain or loss for Canadian federal or provincial income tax or other tax
purpose as a result of such defeasance or covenant defeasance and will be
subject to Canadian federal or provincial income tax and other tax on the
same amounts, in the same manner and at the same times as would have been
the case had such defeasance not occurred (and for the purposes of such
opinion, such
88
Canadian counsel shall assume that Holders of the Securities include
Holders who are not resident in Canada).
(9) The Company is not an "insolvent person" within the meaning
of the BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of such deposit
or at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(10) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that such deposit shall not cause the Trustee or the
trust so created to be subject to the Investment Company Act of 1940, as
amended.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related coupons of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result
of such election or Conversion Event based on the applicable Market Exchange
Rate for such Currency in effect on the third Business Day prior to each
payment date, except, with respect to a Conversion Event, for such Currency in
effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any related
coupons.
89
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of, a
nationally recognized firm of independent public accountants (evidenced by an
Officer's Certificate) delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1405; provided, HOWEVER, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any, on
any such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of one or more series of Securities may be called
at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in New York, New York, in Calgary,
Alberta or in London, England as the Trustee shall determine. Notice of
every meeting of Holders of one or more series of Securities, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not
90
have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in New York, New York in
Calgary, Alberta or in London, England for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder of Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Person entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; PROVIDED, HOWEVER, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1502(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum, the Persons entitled to vote 25% in principal amount of
the Outstanding Securities at the time shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of not less than a majority in principal amount of the Outstanding Securities
of such series who have cast their votes; PROVIDED, HOWEVER, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request,
91
demand, authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by having
the signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify to
the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the
92
Holders of Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
101); PROVIDED, HOWEVER, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. COUNTERPARTS.
This Indenture may be executed in any number of counterparts (either
by facsimile or by original manual signature) each of which so executed shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same Indenture.
* * * * *
93
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ENCANA CORPORATION
By:
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice-President &
Chief Financial Officer
By:
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
ENCANA CORPORATION
[Insert title of sufficient description of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("UNITED STATES PERSON(S)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise EnCana Corporation or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by
A-1-1
you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certificate excepts and does not relate to [U.S.$] [________] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
By:
-----------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
ENCANA CORPORATION
[Insert title of sufficient description of Securities to be delivered]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
[_______] principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("UNITED STATES PERSON(S)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise EnCana
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations
A-2-1
and (ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, collection of any interest) are no longer true
and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[EUROCLEAR BANK S.A./N.A, as Operator of the
Euroclear System]
[CLEARSTREAM]
By:
----------------------------------------
Name:
Title:
A-2-2
-------------------------------------------------------------------------------
ENCANA CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
---------
INDENTURE
Dated as of __________, 200_
Providing for the issue of
Debt Securities
in unlimited principal amount
---------
-------------------------------------------------------------------------------
ENCANA CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF [__________], 200__
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss. 310(a)(1) .................................... 608(a)
(a)(2) .................................... 608(a)
(b) .................................... 609,610
ss. 312(c) .................................... 703
ss. 314(a) .................................... 703
(a)(4) .................................... 1004
(c)(1) .................................... 102
(c)(2) .................................... 102
(e) .................................... 102
ss. 315(b) .................................... 601
ss. 316(a)(last
Sentence) .................................... 101 ("Outstanding")
(a)(1)(A) .................................... 502, 512
(a)(1)(B) .................................... 513
(b) .................................... 508
(c) .................................... 104(e)
ss. 317(a)(1) .................................... 503
(a)(2) .................................... 504
(b) .................................... 1003
ss. 318(a) .................................... 111
---------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
[Page must remain for formatting purposes]
TABLE OF CONTENTS
PAGE
PARTIES.......................................................................1
RECITALS OF THE COMPANY.......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions....................................................1
"Accelerated Indebtedness".....................................2
"Act"..........................................................2
"Additional Amounts"...........................................2
"Affiliate"....................................................2
"Authenticating Agent".........................................2
"Authorized Newspaper".........................................2
"Bearer Security"..............................................2
"Board of Directors"...........................................2
"Board Resolution".............................................2
"Business Day".................................................2
"calculation period"...........................................3
"Canadian Taxes"...............................................3
"Clearstream"..................................................3
"Commission"...................................................3
"Common Depositary"............................................3
"Company"......................................................3
"Company Officer"..............................................3
"Company Request" or "Company Order"...........................3
"Consolidated Net Tangible Assets".............................3
"Conversion Date"..............................................3
"Conversion Event".............................................4
"Corporate Trust Office".......................................4
"corporation"..................................................4
"coupon".......................................................4
"covenant defeasance"..........................................4
"Currency".....................................................4
"Current Assets"...............................................4
"Default"......................................................4
---------------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
"Defaulted Interest"...........................................4
"defeasance"...................................................4
"Depositary" or "Depositary for Securities"....................4
"Dollar" or "$"................................................4
"Dollar Equivalent of the Foreign Currency"....................4
"Election Date"................................................4
"Euroclear"....................................................4
"Event of Default".............................................4
"Exchange Act".................................................5
"Exchange Date"................................................5
"Exchange Rate Agent"..........................................5
"Exchange Rate Officer's Certificate"..........................5
"Excluded Holder"..............................................5
"Extension Notice".............................................5
"Extension Period".............................................5
"Facilities"...................................................5
"Final Maturity"...............................................5
"Financial Instrument Obligations".............................5
"First Currency"...............................................6
"Foreign Currency".............................................6
"GAAP".........................................................6
"Government Obligations".......................................6
"Holder".......................................................6
"Indenture"....................................................6
"Indexed Security".............................................7
"interest".....................................................7
"Interest Payment Date"........................................7
"Judgment Currency"............................................7
"Lien".........................................................7
"Market Exchange Rate".........................................7
"Maturity".....................................................8
"Non-Recourse Debt"............................................8
"Notice of Default"............................................8
"Officer's Certificate"........................................8
"Opinion of Counsel"...........................................8
"Optional Reset Date"..........................................8
"Original Issue Discount Security".............................8
"Original Stated Maturity".....................................8
"Other Currency"...............................................8
"Outstanding"..................................................8
"Paying Agent"................................................10
"Permitted Liens".............................................10
"Person"......................................................12
"Place of Payment"............................................12
"Predecessor Security"........................................12
"Purchase Money Mortgage".....................................12
"Redemption Date".............................................12
"Redemption Price"............................................12
iii
"Registered Security".........................................12
"Regular Record Date".........................................12
"Repayment Date"..............................................13
"Repayment Price".............................................13
"Required Currency"...........................................13
"Reset Notice"................................................13
"Responsible Officer".........................................13
"Restricted Property".........................................13
"Restricted Securities".......................................13
"Restricted Subsidiary".......................................13
"Securities"..................................................13
"Security Register" and "Security Registrar"..................13
"Shareholders' Equity"........................................14
"Special Record Date".........................................14
"Stated Maturity".............................................14
"Subsequent Interest Period"..................................14
"Subsidiary"..................................................14
"Substantial Completion"......................................14
"Trust Indenture Act" or "TIA"................................14
"Trustee".....................................................14
"UCC".........................................................14
"United States"...............................................14
"United States person"........................................14
"Unrestricted Subsidiary".....................................14
"Valuation Date"..............................................15
"Vice-President"..............................................15
"Voting Shares"...............................................15
"Yield to Maturity"...........................................15
SECTION 102. Compliance Certificates and Opinions..........................15
SECTION 103. Form of Documents Delivered to Trustee........................16
SECTION 104. Acts of Holders...............................................16
SECTION 105. Notices, etc. to Trustee and Company..........................18
SECTION 106. Notice to Holders; Waiver.....................................18
SECTION 107. Effect of Headings and Table of Contents......................19
SECTION 108. Successors and Assigns........................................19
SECTION 109. Separability Clause...........................................19
SECTION 110. Benefits of Indenture.........................................20
SECTION 111. Governing Law.................................................20
SECTION 112. Legal Holidays................................................20
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities....................................................20
SECTION 114. Conversion of Currency........................................21
SECTION 115. Currency Equivalent...........................................22
SECTION 116. Incorporators, Shareholders, Officers and Directors
of the Company Exempt from Individual Liability...............22
SECTION 117. Conflict with the Trust Indenture Act.........................23
iv
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms Generally...............................................23
SECTION 202. Form of Trustee's Certificate of Authentication...............23
SECTION 203. Securities Issuable in Global Form............................24
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..........................25
SECTION 302. Denominations.................................................28
SECTION 303. Execution, Authentication, Delivery and Dating................28
SECTION 304. Temporary Securities..........................................30
SECTION 305. Registration, Registration of Transfer and Exchange...........33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............36
SECTION 307. Payment of Principal and Interest; Interest Rights
Preserved; Optional Interest Reset............................37
SECTION 308. Optional Extension of Stated Maturity.........................40
SECTION 309. Persons Deemed Owners.........................................41
SECTION 310. Cancellation..................................................41
SECTION 311. Computation of Interest.......................................42
SECTION 312. Currency and Manner of Payments in Respect of Securities......42
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent..44
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.......................45
SECTION 402. Application of Trust Money....................................46
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................................47
SECTION 502. Acceleration of Maturity; Rescission and Annulment............48
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................50
SECTION 504. Trustee May File Proofs of Claim..............................50
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...51
SECTION 506. Application of Money Collected................................51
SECTION 507. Limitation on Suits...........................................52
SECTION 508. Unconditional Right of Holders to Receive Principal
(Premium, if any) and Interest................................52
SECTION 509. Restoration of Rights and Remedies............................53
SECTION 510. Rights and Remedies Cumulative................................53
SECTION 511. Delay or Omission Not Waiver..................................53
v
SECTION 512. Control by Holders............................................53
SECTION 513. Waiver of Past Defaults.......................................54
SECTION 514. Waiver of Stay or Extension Laws..............................54
SECTION 515. Undertaking for Costs.........................................54
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults............................................55
SECTION 602. Certain Duties and Responsibilities of Trustee................55
SECTION 603. Certain Rights of Trustee.....................................56
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Securities.................................................57
SECTION 605. May Hold Securities...........................................58
SECTION 606. Money Held in Trust...........................................58
SECTION 607. Compensation and Reimbursement................................58
SECTION 608. Corporate Trustee Required; Eligibility.......................59
SECTION 609. Resignation and Removal; Appointment of Successor.............59
SECTION 610. Acceptance of Appointment by Successor........................61
SECTION 611. Merger, Conversion, Consolidation or Succession to Business...62
SECTION 612. Authorization of Authenticating Agent.........................62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....64
SECTION 702. Preservation of List of Names and Addresses of Holders........64
SECTION 703. Disclosure of Names and Addresses of Holders..................64
SECTION 704. Reports by Trustee............................................64
SECTION 705. Reports by the Company........................................65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms..........66
SECTION 802. Successor Person Substituted..................................67
SECTION 803. Securities to Be Secured in Certain Events....................67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............68
SECTION 902. Supplemental Indentures with Consent of Holders...............69
SECTION 903. Execution of Supplemental Indentures..........................70
SECTION 904. Effect of Supplemental Indentures.............................70
SECTION 905. Conformity with the Trust Indenture Act.......................70
vi
SECTION 906. Reference in Securities to Supplemental Indentures............71
SECTION 907. Notice of Supplemental Indentures.............................71
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (Premium, if any) and Interest...........71
SECTION 1002. Maintenance of Office or Agency...............................71
SECTION 1003. Money for Securities Payments to Be Held in Trust.............73
SECTION 1004. Statement as to Compliance....................................74
SECTION 1005. Additional Amounts............................................74
SECTION 1006. Limitation on Liens...........................................76
SECTION 1007. Payment of Taxes..............................................76
SECTION 1008. Corporate Existence...........................................76
SECTION 1009. Waiver of Certain Covenants...................................77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article......................................77
SECTION 1102. Election to Redeem; Notice to Trustee.........................77
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............77
SECTION 1104. Notice of Redemption..........................................78
SECTION 1105. Deposit of Redemption Price...................................79
SECTION 1106. Securities Payable on Redemption Date.........................79
SECTION 1107. Securities Redeemed in Part...................................80
SECTION 1108. Tax Redemption................................................80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article......................................81
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........81
SECTION 1203. Redemption of Securities for Sinking Fund.....................82
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article......................................83
SECTION 1302. Repayment of Securities.......................................83
SECTION 1303. Exercise of Option............................................83
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable...............................................84
SECTION 1305. Securities Repaid in Part.....................................84
vii
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance..85
SECTION 1402. Defeasance and Discharge......................................85
SECTION 1403. Covenant Defeasance...........................................85
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...............86
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions..............88
SECTION 1406. Reinstatement.................................................89
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.....................89
SECTION 1502. Call, Notice and Place of Meetings............................89
SECTION 1503. Persons Entitled to Vote at Meetings..........................90
SECTION 1504. Quorum; Action................................................90
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.......................................91
SECTION 1506. Counting Votes and Recording Action of Meetings...............92
SECTION 1507. Counterparts..................................................92
TESTIMONIUM..................................................................93
SIGNATURES...................................................................93
FORMS OF CERTIFICATION................................................EXHIBIT A
