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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 3, 1998
UNION PACIFIC RESOURCES GROUP INC.
----------------------------------
(Exact name of registrant as specified in charter)
Utah 1-13916 13-2647483
- --------------------------------------------------------------------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
P.O. Box 7, 801 Cherry Street, Fort Worth, Texas 76101
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code 817-877-6000
-------------
(Former name or former address, if changed since last report)
Not applicable
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Acquisition of Norcen Energy Resources Limited
On March 3, 1998, the Registrant announced by press release the closing
of its tender offer of up to 100% of the common shares of Norcen Energy
Resources Limited, a Canadian corporation ("Norcen"). In total, 95.5 percent of
the common shares of Norcen was tendered to the Registrant at the purchase price
of US$13.65 per share (C$19.80). On such date, Union Pacific Resources Inc., an
Alberta corporation ("UPRI"), the Registrant's indirect wholly-owned subsidiary
owned 181,076,311 common shares of Norcen, including common shares of Norcen
tendered, representing approximately 96.8 percent of the issued and outstanding
common shares of Norcen on a fully diluted basis. The Registrant hereby
incorporates by reference herein the press release attached hereto as Exhibit
99.1, which is made a part of this Item 2.
On March 6, 1998, UPRI announced that on March 5, 1998 UPRI completed
the compulsory acquisition procedures pursuant to section 206 of the Canada
Business Corporations Act in order to acquire the remaining, 6,107,965 issued
and outstanding common shares of Norcen, representing approximately 3.2 percent
which had not previously been tendered pursuant to UPRI's Offer to Purchase and
Take-Over Bid Circular dated January 30, 1998. UPRI offer to purchase the common
shares of Norcen expired on March 2, 1998. The Registrant hereby incorporates by
reference herein the press release attached hereto as Exhibit 99.2.
UPRI has deposited with CIBC Mellon Trust Company, P.O. Box 1036,
Adelaide Street, Postal Station, Toronto, Ontario M5C 2K4, Toll free phone
number: 1-800-387-0825, the purchase price for the common shares of Norcen to be
paid to the former shareholders of Norcen.
The Company funded the purchase price to be paid to Norcen shareholders
through a U.S. $2.7 Billion 364 Day Competitive Advance/Revolving Credit
Agreement dated March 2, 1998, by and among the Registrant, the lenders named
therein and the Chase Manhattan Bank, as administrative agent, and Bank of
Montreal, as syndication agent, other outstanding credit facilities and other
borrowings from private or public lenders.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(a) Financial Statements of Business Acquired. The Company has
determined that it is impracticable to provide the historical financial
statements of Norcen and its subsidiary companies which are required to be
reported in this Current Report on Form 8-K at this time. The Company will file
the required financial statements under cover of an amendment to this Current
Report on Form 8-K as soon as practicable but in no event later than May 18,
1998.
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(b) Pro Forma Financial Information. The Company has determined that it
is impracticable to provide the pro forma financial information required to be
reported in this Current Report on Form 8-K at this time. The Company will file
the required pro forma financial information under cover of an amendment to this
Current Report on Form 8-K as soon as practicable but in no event later than
May 18, 1998.
(c) Exhibits. Exhibits not incorporated herein by reference to a prior
filing are designated by an asterisk (*) and are filed herewith.
Exhibit No. Exhibit
---------- -------
*2.1 Pre-acquisition Agreement between Union Pacific
Resources Group Inc., Union Pacific Resources Inc.
and Norcen Energy Resources Limited, dated
January 25, 1998.
4.1 Specimen of Certificate evidencing the Common Stock
(Exhibit 4 to Form S-1)
4.2 Rights Agreement, dated as of October 28, 1996,
between Union Pacific Resources Group Inc. and
Harris Trust and Savings Bank, as rights agent
(incorporated herein by reference to the Company's
Current Report on Form 8-K filed on November 1,
1996).
4.3 Indenture, dated as of March 27, 1996, between
Union Pacific Resources Group Inc. and Texas
Commerce Bank National Association, as trustee
(incorporated herein by reference to Exhibit 4.1 to
the Company's Form S-3 Registration Statement,
Registration No. 333-2984, dated May 23, 1996).
*4.4 Terms Agreement, dated as of October 10,
1996, for $200,000,000 7 1/2% debentures due
October 15, 2026.
*4.5 Terms Agreement, dated as of October 10,
1996, for $200,000,000 7% notes due October
15, 2006.
*4.6 Terms Agreement, dated as of October 31,
1996, for $150,000,000 7 1/2% debentures due
November 1, 2096.
*4.7 Form of 7 1/2% Rate Debenture due October 15, 2026.
*4.8 Form of 7% Rate Note due October 15, 2006.
*4.9 Form of 7 1/2% Rate Note due November 1, 2096.
*4.10 Trust Indenture, dated as of May 7, 1996,
providing for the issue of Debt Securities
in unlimited
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principal amount, between Norcen Energy Resources
Limited and Montreal Trust Company of Canada, as
trustee.
*4.11 First Supplemental Indenture, dated as of May 22,
1996, to Trust Indenture, dated as of May 7, 1996
providing for the issue of 73/8% Debentures due May
15, 2006 in aggregate principal amount of U.S.
$250,000,000 between Norcen Energy Resources
Limited and Montreal Trust Company of Canada, as
trustee.
*4.12 Second Supplemental Indenture, dated as of June 26,
1996, to Trust Indenture, dated as of May 7, 1996,
providing for the issue of 7.8% Debentures due July
2, 2008 in aggregate principal amount of U.S.
$150,000,000 between Norcen Energy Resources
Limited and Montreal Trust Company of Canada, as
trustee.
*4.13 Third Supplement Indenture, dated as of June 26,
1996, to Trust Indenture, dated as of May 7, 1996,
providing the issue of 6.8% Debentures due July 2,
2002 in aggregate principal amount of U.S.
$250,000,000 between Norcen Energy Resources
Limited and Montreal Trust Company of Canada, as
trustee.
*4.14 Fourth Supplemental Indenture, dated as of February
27, 1998, to Trust Indenture, dated as of May 7,
1996, providing for the Guarantee of all Securities
be Issued or Previously Issued under the Trust
Indenture between Norcen Energy Resources Limited,
Union Pacific Resources Group Inc. as guarantor and
Montreal Trust Company of Canada, as trustee.
*99.1 Press Release dated March 3, 1998.
*99.2 Press Release dated March 6, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNION PACIFIC RESOURCES GROUP INC.
/s/ Joseph A. LaSala, Jr.
------------------------------------
By: Joseph A. LaSala, Jr.
Vice President, General Counsel
and Secretary
DATED: March 17, 1998
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EXHIBIT INDEX
Exhibit Exhibit Page
- ------- ------- ----
*2.1 Pre-acquisition Agreement between Union Pacific Resources
Group Inc., Union Pacific Resources Inc. and Norcen Energy
Resources Limited, dated January 25, 1998.
4.1 Specimen of Certificate evidencing the Common Stock (Exhibit
4 to Form S-1)
4.2 Rights Agreement, dated as of October 28, 1996, between Union
Pacific Resources Group Inc. and Harris Trust and Savings
Bank, as rights agent (incorporated herein by reference to the
Company's Current Report on Form 8-K filed on November 1,
1996).
4.3 Indenture, dated as of March 27, 1996, between Union Pacific
Resources Group Inc. and Texas Commerce Bank National
Association, as trustee (incorporated herein by reference to
Exhibit 4.1 to the Company's Form S-3 Registration Statement,
Registration No. 333-2984, dated May 23, 1996).
*4.4 Terms Agreement, dated as of October 10, 1996, for
$200,000,000 7 1/2% debentures due October 15, 2026.
*4.5 Terms Agreement, dated as of October 10, 1996, for
$200,000,000 7% notes due October 15, 2006.
*4.6 Terms Agreement, dated as of October 31, 1996, for
$150,000,000 7 1/2% debentures due November 1, 2096.
*4.7 Form of 7 1/2% Rate Debenture due October 15, 2026.
*4.8 Form of 7% Rate Note due October 15, 2006.
*4.9 Form of 7 1/2% Rate Note due November 1, 2096.
*4.10 Trust Indenture, dated as of May 7, 1996, providing for the
issue of Debt Securities in unlimited principal amount,
between Norcen Energy Resources Limited and Montreal Trust
Company of Canada, as trustee.
*4.11 First Supplemental Indenture, dated as of May 22, 1996, to
Trust Indenture, dated as of May 7, 1996 providing for the
issue of 73/8% Debentures due May 15, 2006 in aggregate
principal amount of U.S. $250,000,000 between Norcen Energy
Resources Limited and Montreal Trust Company of Canada, as
trustee.
*4.12 Second Supplemental Indenture, dated as of June 26, 1996, to
Trust Indenture, dated as of May 7, 1996, providing for the
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issue of 7.8% Debentures due July 2, 2008 in aggregate
principal amount of U.S. $150,000,000 between Norcen Energy
Resources Limited and Montreal Trust Company of Canada, as
trustee.
*4.13 Third Supplement Indenture, dated as of June 26, 1996, to
Trust Indenture, dated as of May 7, 1996, providing the issue
of 6.8% Debentures due July 2, 2002 in aggregate principal
amount of U.S. $250,000,000 between Norcen Energy Resources
Limited and Montreal Trust Company of Canada, as trustee.
*4.14 Fourth Supplemental Indenture, dated as of February 27, 1998,
to Trust Indenture, dated as of May 7, 1996, providing for the
Guarantee of all Securities be Issued or Previously Issued
under the Trust Indenture between Norcen Energy Resources
Limited, Union Pacific Resources Group Inc. as guarantor and
Montreal Trust Company of Canada, as trustee.
*99.1 Press Release dated March 3, 1998.
*99.2 Press Release dated March 6, 1998.
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* Filed herewith.
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PRE-ACQUISITION AGREEMENT
Between
UNION PACIFIC RESOURCES GROUP INC.
and
UNION PACIFIC RESOURCES INC.
and
NORCEN ENERGY RESOURCES LIMITED
Dated January 25, 1998
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION
1.1 Definitions...........................................................2
1.2 Singular, Plural, etc.................................................4
1.3 Deemed Currency.......................................................4
1.4 Headings, etc.........................................................4
1.5 Date for any Action...................................................5
1.6 Governing Law.........................................................5
1.7 Attornment............................................................5
1.8 Incorporation of Schedules............................................5
ARTICLE 2
THE OFFER
2.1 The Offer.............................................................6
2.2 Norcen Directors' Circular............................................7
2.3 Offer Documents.......................................................9
2.4 Outstanding Stock Options.............................................9
ARTICLE 3
PUBLICITY AND SOLICITATION
3.1 Publicity............................................................10
3.2 Solicitation.........................................................10
ARTICLE 4
TRANSACTIONS FOLLOWING COMPLETION OF THE OFFER
4.1 Second Stage Transaction.............................................10
4.2 Information Circular, Etc............................................11
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF UPR AND UPRI
5.1 Organization and Qualification.......................................11
5.2 Authority Relative to this Agreement.................................11
5.3 No Violations........................................................12
5.4 Funds Available......................................................13
5.5 Knowledge............................................................13
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF NORCEN
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6.1 Organization and Qualification......................................13
6.2 Authority Relative to this Agreement................................13
6.3 No Violations.......................................................14
6.4 Capitalization......................................................15
6.5 No Material Adverse Change..........................................15
6.6 No Undisclosed Material Liabilities.................................15
6.7 Impairment..........................................................15
6.8 Officer Obligations.................................................15
6.9 Brokerage Fees......................................................16
6.10 Conduct of Business.................................................16
6.11 Reports.............................................................16
6.12 U.S. Registration...................................................17
6.13 Subsidiaries........................................................17
ARTICLE 7
CONDUCT OF BUSINESS
7.1 Conduct of Business by Norcen.......................................17
ARTICLE 8
COVENANTS OF NORCEN
8.1 Notice of Material Change...........................................19
8.2 Non-Completion Fee..................................................20
8.3 No Solicitation.....................................................20
8.4 Norcen Board of Directors...........................................21
8.5 Structure of Transaction............................................21
ARTICLE 9
COVENANTS OF UPRI
9.1 Availability of Funds...............................................22
9.2 Employment Agreements...............................................22
9.3 Officers' and Directors' Insurance..................................22
9.4 Employment Termination..............................................22
9.5 Indemnities.........................................................22
9.6 Holdco Purchase.....................................................23
9.7 Retention Bonus.....................................................23
ARTICLE 10
MUTUAL COVENANTS
10.1 Other Filings.......................................................23
10.2 HSR Filings.........................................................23
10.3 Additional Agreements...............................................24
10.4 Access to Information...............................................24
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ARTICLE 11
TERMINATION, AMENDMENT AND WAIVER
11.1 Termination..........................................................25
11.2 Effect of Termination................................................26
11.3 Amendment............................................................26
11.4 Waiver...............................................................26
ARTICLE 12
GENERAL PROVISIONS
12.1 Notices..............................................................26
12.2 Miscellaneous........................................................28
12.3 Assignment...........................................................28
12.4 Expenses.............................................................28
12.5 Severability.........................................................28
12.6 Confidentiality Agreement............................................28
12.7 Counterpart Execution................................................29
SCHEDULE A - CONDITIONS TO THE OFFER
SCHEDULE B - FORM OF PRE-TENDER AGREEMENT FOR CONTROLLING
SHAREHOLDER
SCHEDULE C - FORM OF NORCEN PRESS RELEASE
SCHEDULE D - FORM OF UPR PRESS RELEASE
SCHEDULE E - CONDITIONS IN FAVOUR OF NORCEN
SCHEDULE F - LETTER FOR RECIPIENTS OF EVALUATION MATERIALS
SCHEDULE G - HOLDCO SHARE PURCHASE AGREEMENT
<PAGE>
PRE-ACQUISITION AGREEMENT
-------------------------
THIS AGREEMENT made as of the 25th day of January, 1998,
BETWEEN:
UNION PACIFIC RESOURCES GROUP INC., a corporation duly
incorporated under and governed by the laws of the State of Utah
and having an office in the City of Fort Worth, in the State of
Texas (hereafter referred to as "UPR")
OF THE FIRST PART,
- and -
UNION PACIFIC RESOURCES INC., a corporation duly incorporated
under and governed by the laws of the Province of Alberta and
having an office in the City of Calgary, in the Province of
Alberta (hereafter referred to as "UPRI")
OF THE SECOND PART,
- and -
NORCEN ENERGY RESOURCES LIMITED, a corporation duly amalgamated
under and governed by the federal laws of Canada and having its
head and principal office in the City of Calgary, in the Province
of Alberta (hereafter referred to as "Norcen")
OF THE THIRD PART.
WHEREAS the Board of Directors of each of UPR and Norcen has determined
that it is in the best interests of their respective corporations and
shareholders that UPR and Norcen combine their business interests with the
result that there shall be one economic enterprise and that such combination be
effected through an offer by UPRI, an indirectly wholly-owned subsidiary of UPR,
to purchase all of the outstanding shares of Norcen;
AND WHEREAS the Board of Directors of Norcen has determined to
unanimously recommend acceptance of the UPRI offer to the shareholders of
Norcen;
AND WHEREAS the Board of Directors of Norcen has determined that it
would be in the best interests of Norcen and its shareholders to enter into this
Agreement;
AND WHEREAS UPR, through UPRI, is willing to make an offer subject to
the terms and conditions of this Agreement.
NOW THEREFORE IN CONSIDERATION OF the mutual covenants hereinafter
contained and other good and valuable consideration (the receipt and adequacy
whereof is hereby acknowledged), the parties hereto agree as follows:
<PAGE>
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ARTICLE 1
INTERPRETATION
1.1 Definitions
-----------
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith:
"Act" means the Canada Business Corporations Act as the same has been and may
hereafter from time to time be amended;
"Agreement", "this Agreement", "herein", "hereto", and "hereof" and similar
expressions refer to this Agreement, as the same may be amended or supplemented
from time to time and, where applicable, to the appropriate Schedules hereto;
"Business Day" means any day excepting a Saturday, Sunday or statutory holiday
in Calgary, Alberta;
"diluted basis" means, with respect to the number of outstanding Norcen Shares
at any time, such number of outstanding Norcen Shares calculated assuming that
all outstanding options and other rights to purchase Norcen Shares are
exercised;
"Effective Time" means the time that UPRI shall have acquired ownership of and
paid for at least the Minimum Required Shares pursuant to the terms of the
Offer;
"Expiry Time" means the Initial Expiry Time unless the Offer has been extended,
in which case it means the expiry time of the Offer as extended from time to
time;
"in writing" means written information including documents, files, records,
books and other materials made available, delivered or produced to UPR by or on
behalf of Norcen in the course of conducting its due diligence review in respect
of Norcen and its subsidiaries between January 5, 1998, being the date of the
confidentiality agreement between UPR and Norcen, and the date of this
Agreement;
"Initial Expiry Time" means 6:00 p.m. (Calgary time) on the first Business Day
which falls after the 30th day following the day of the mailing of the Offer
Documents to the shareholders of Norcen (where the first day of this period is
the day immediately following the day of mailing);
"Material Adverse Change" means any change (or any condition, event or
development involving a prospective change) in the business, operations, results
of operations, assets, capitalization, financial condition, licenses, permits,
concessions, rights, liabilities, prospects or privileges, whether contractual
or otherwise, of Norcen or any of its subsidiaries which is materially adverse
to the business of Norcen and its subsidiaries considered as a whole other than
a change (i) which arises out of a matter that has been publicly disclosed or
otherwise disclosed in writing to UPR, (ii) resulting from conditions affecting
the oil and gas industry as a whole, or (iii) resulting from general
<PAGE>
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economic, financial, currency exchange, securities or commodity market
conditions in Canada or elsewhere;
"Minimum Condition" means the condition set forth in paragraph (a) of Schedule
A;
"Minimum Required Shares" means at least that number of the outstanding Norcen
Shares required pursuant to the Minimum Condition unless UPRI shall have waived
the Minimum Condition in which case "Minimum Required Shares" means that number
of the outstanding Norcen Shares which UPRI takes up on the Take-up Date,
provided that such number of Norcen Shares shall be at least that number of
Norcen Shares tendered pursuant to the pre-tender agreement referred to in
Section 2.2(b);
"Norcen" means Norcen Energy Resources Limited, the party of the third part;
"Norcen Governing Documents" means the Certificate and Articles of Amalgamation
and By-laws of Norcen;
"Norcen Options" means the outstanding options to acquire Norcen Shares under
the Stock Option Plan;
"Norcen Shares" means common shares in the share capital of Norcen;
"Offer" has the meaning set forth in Section 2.1(a);
"Offer Documents" has the meaning set forth in Section 2.3(a);
"Officer Obligations" means any obligations or liabilities of Norcen or any
subsidiary of Norcen to pay any amount to its officers, directors, or employees,
other than for salary, bonuses under their existing bonus arrangements and
directors' fees in the ordinary course in each case in amounts consistent with
historic practices and, without limiting the generality of the foregoing,
Officer Obligations shall include the obligations of Norcen or any of its
subsidiaries to officers or employees (i) for severance or termination payments
on the change of control of Norcen pursuant to any executive involuntary
severance and termination agreements in the case of officers and pursuant to
Norcen's severance policy in the case of employees and (ii) for retention bonus
payments pursuant to any retention bonus program;
"Second Stage Transaction" has the meaning set forth in Section 4.1;
"Securities Authorities" means the appropriate securities commissions or similar
regulatory authorities in Canada and each of the provinces and territories
thereof and in the United States and each of the states thereof;
"Securities Laws" has the meaning set forth in Section 2.3(a);
"Stock Option Plan" means the stock option plan of Norcen as amended and
restated February 14, 1995 and further amended as at February 4, 1997;
<PAGE>
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"subsidiary" has the meaning set forth in the Act;
"Superior Take-over Proposal" means any bona fide written Take-over Proposal
which, in the opinion of Norcen's Board of Directors after consultation with its
financial advisors, constitutes a commercially feasible transaction for which
adequate financial arrangements have been made and which could be carried out
within a time frame that is reasonable in the circumstances and, if consummated,
would be superior to the Offer from a financial point of view to Norcen and to
Norcen's shareholders;
"Take-over Proposal" means, in respect of Norcen or its subsidiaries or their
assets, any proposals or offers regarding any take-over bid, merger,
consolidation, amalgamation, arrangement, sale of a material amount of assets,
sale of treasury shares (other than pursuant to options under the Stock Option
Plan) or other business combination or similar transaction;
"Take-up Date" means the date that UPRI first takes up and acquires Norcen
Shares pursuant to the Offer;
"UPR" means Union Pacific Resources Group Inc., being the party of the first
part; and
"UPRI" means Union Pacific Resources Inc., being the party of the second part.
1.2 Singular, Plural, etc.
----------------------
Words importing the singular number include the plural and vice versa
and words importing gender include the masculine, feminine and neuter genders.
1.3 Deemed Currency
---------------
In the absence of a specific designation of any currency any
undescribed dollar amount herein shall be deemed to refer to Canadian dollars.
1.4 Headings, etc.
--------------
The division of this Agreement into Articles and Sections, the
provision of a table of contents hereto and the insertion of the recitals and
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement and, unless otherwise stated,
all references in this Agreement or in the Schedules to Articles, Sections and
Schedules refer to Articles, Sections and Schedules of and to this Agreement or
of the Schedules in which such reference is made.
1.5 Date for any Action
-------------------
In the event that any date on which any action is required to be taken
hereunder by any of the parties hereunder is not a Business Day, such action
shall be required to be taken on the next succeeding day which is a Business
Day.
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1.6 Governing Law
-------------
This Agreement shall be governed by and interpreted in accordance with
the laws of the Province of Alberta and the laws of Canada applicable therein.
1.7 Attornment
----------
The parties hereby irrevocably and unconditionally consent to and
submit to the courts of the Province of Alberta for any actions, suits or
proceedings arising out of or relating to this Agreement or the matters
contemplated hereby (and agree not to commence any action, suit or proceeding
relating thereto except in such courts) and further agree that service of any
process, summons, notice or document by single registered mail to the addresses
of the parties set forth in this Agreement shall be effective service of process
for any action, suit or proceeding brought against either party in such court.
The parties hereby irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the matters contemplated hereby in the courts of the Province of Alberta and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding so brought has
been brought in an inconvenient forum.
1.8 Incorporation of Schedules
--------------------------
Schedules A to G attached hereto and described below shall, for all
purposes hereof, form an integral part of this Agreement.
Schedule A Conditions to the Offer
Schedule B Form of Pre-tender Agreement for Controlling
Shareholder
Schedule C Form of Norcen Press Release
Schedule D Form of UPR Press Release
Schedule E Conditions in Favour of Norcen
Schedule F Letter for Recipients of Evaluation Materials
Schedule G Holdco Share Purchase Agreement
ARTICLE 2
THE OFFER
2.1 The Offer
---------
(a) UPR shall cause UPRI to mail and UPRI shall mail before 11:59
p.m. (Calgary time) on February 2, 1998, an offer to purchase
all of the outstanding Norcen Shares for a price of $19.80 in
cash for each Norcen Share, which offer shall be made in
accordance with Securities Laws and be subject only to the
conditions set forth in Schedule A hereto (the "Offer", which
term shall include any amendments to, or extensions of, such
Offer, including, without limitation, increasing the
consideration, removing or waiving any condition or extending
the date by which Norcen Shares may be tendered). The Offer
shall be prepared in both the English and French
<PAGE>
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language and in accordance with Securities Laws. UPR shall
provide Norcen with a draft copy of the Offer Documents prior
to mailing for its review and comment.
(b) The Offer shall expire on the Initial Expiry Time, except that
the Offer may be extended, subject to Section 2.1(c), if the
conditions thereto set forth in Schedule A are not satisfied
on the date and time at which the Offer expires and if UPRI
determines, acting reasonably, that there is a reasonable
prospect that the conditions of the Offer may be satisfied
prior to the Expiry Time.
Subject to the satisfaction or waiver of the conditions set
forth in Schedule A hereto, UPRI shall, as soon as is
practicable in the circumstances and in any event within the
time periods required by law, accept for payment and pay for
all Norcen Shares validly tendered (and not properly
withdrawn) pursuant to the Offer. UPR and UPRI shall use all
commercially reasonable efforts to consummate the Offer,
subject to the terms and conditions thereof.
(c) Notwithstanding the foregoing, if any of the conditions set
out in paragraphs (b), (c), (d) and (e) of Schedule A have not
been satisfied or waived on the Initial Expiry Time, UPRI
agrees to extend the Offer for such period of time, not to
exceed 60 days following the Initial Expiry Time, as is
necessary to satisfy or fulfill such conditions, but only if
UPRI has made a bona fide determination, acting reasonably,
that there is a reasonable prospect that such conditions may
be satisfied within such 60 day period.
(d) It is agreed that UPRI may, in its sole discretion:
(i) waive any term or condition of the Offer for its
benefit provided that if UPRI takes up and pays for
any Norcen Shares it shall acquire not less than the
Minimum Required Shares; and
(ii) amend any term or condition of the Offer, provided
that UPRI shall not change the number of Norcen
Shares for which the Offer is made, decrease or
change the form of the consideration to be paid for
each Norcen Share, amend the Offer or modify the
conditions to the Offer in a manner that is, in the
opinion of Norcen, acting reasonably, adverse to the
holders of Norcen Shares.
UPRI agrees to provide Norcen with not less than two days
prior written notice of any waiver or amendment of any term or
condition of the Offer.
(e) UPRI will instruct the depositary under the Offer to advise
Norcen from time to time, not less frequently than every two
Business Days until the day immediately prior to the Expiry
Time and thereafter on an hourly basis, if requested by Norcen
and in such manner as Norcen may reasonably request, as to the
number of Norcen Shares that have been tendered (and not
withdrawn) under the Offer.
<PAGE>
- 7 -
(f) The parties hereto agree that UPR may make the Offer through
UPRI but UPR shall be liable to Norcen for the full
performance by UPRI under this Agreement.
(g) UPRI's obligation to make the Offer as set forth in Section
2.1(a) is conditional upon the execution and delivery to UPRI,
concurrently with the execution of this Agreement, of the
pre-tender agreement referred to in Section 2.2(b).
(h) Prior to commencement of the Offer and continuing for 20 days
thereafter, UPR agrees that it will consider in good faith
restructuring the Offer contemplated in this Agreement prior
to its commencement to provide for a right on the part of
Canadian shareholders of Norcen to either receive cash of
$19.80 for each Norcen Share or cash and investment grade
notes of UPRI guaranteed by UPR and if UPR agrees to amend the
Offer, and Norcen consents thereto, the necessary amendments
to this Agreement and the Offer will be made to give effect
thereto.
2.2 Norcen Directors' Circular
--------------------------
(a) Norcen hereby consents to the Offer as set forth in Section
2.1 and confirms that its Board of Directors has unanimously
approved the Offer and this Agreement and has resolved to
unanimously recommend acceptance of the Offer by the holders
of Norcen Shares, subject to Section 2.2(c), provided that the
Offer is not amended except in accordance with the terms of
this Agreement. Norcen shall prepare and mail as soon as
possible after UPRI mails the Offer, in both the English and
French language, a directors' circular prepared in accordance
with Securities Laws. The directors' circular will set forth
(among other things) the recommendation of the Board of
Directors of Norcen as described above. Norcen shall provide
UPR and UPRI with a draft copy of the directors' circular
prior to mailing for their review and comment.
(b) The Board of Directors of Norcen has been advised that the
directors and senior officers of Norcen and Noranda Inc., the
controlling shareholder of Norcen, intend to tender their
Norcen Shares under the Offer. Norcen hereby delivers
concurrently with the execution of this Agreement, a
pre-tender agreement (in the form or substantially in the form
of the agreement attached hereto as Schedule B) signed by
Noranda Inc. The directors' circular shall reflect the
execution and delivery of such pre-tender agreement and the
intention of the directors and senior officers to tender their
Norcen Shares pursuant to the Offer.
(c) Notwithstanding Section 2.2(a), in the event that, prior to
the expiry of the Offer, a Superior Take-over Proposal is
offered or made to the holders of Norcen Shares or Norcen, the
Board of Directors of Norcen may withdraw, modify or change
any recommendation regarding the Offer if, in the opinion of
the Board of Directors acting in good faith after written
advice from outside counsel (confirmation of which shall be
immediately delivered to UPR), the failure to so withdraw,
modify or change any recommendation regarding the Offer would
be inconsistent with the performance by the directors of
Norcen of their fiduciary duties under applicable law. Norcen
shall as soon as possible but in any event prior to 10:00 a.m.
(Calgary time) on the
<PAGE>
- 8 -
day following receipt of any Take-over Proposal, advise UPR
orally and in writing that a Take-over Proposal has been
offered or made to the Board of Directors of Norcen or to
Norcen (which notice in writing must identify the party
proposing such transaction and the terms and conditions
thereof, which must include a copy of the terms and conditions
of any written form of Take-over Proposal and which must
provide an undertaking to provide to UPR any further documents
relating to the terms or conditions thereof delivered to the
Board of Directors of Norcen or to Norcen by the offeror). If
the Board of Directors of Norcen believes that the Take- over
Proposal constitutes a Superior Take-over Proposal, Norcen
shall give UPR and UPRI at least four Business Days advance
notice of any action to be taken by the Board of Directors of
Norcen to withdraw, modify or change any recommendation
regarding the Offer or to enter into an agreement to implement
the Superior Take- over Proposal. Such notice shall provide to
UPRI the right during such four Business Days to advise the
Board of Directors of Norcen that it will immediately announce
and as soon as possible in the circumstances amend its Offer
to provide that the holders of Norcen Shares shall receive a
value per Norcen Share equal to or having a value greater than
the value per Norcen Share provided in the Superior Take-over
Proposal. If UPR so advises the Board of Directors prior to
the expiry of such four Business Days period, the Board of
Directors of Norcen shall not withdraw, modify or change any
recommendation with respect to the Offer, as so amended, or
take any action to approve or implement the Superior Take-over
Proposal.
(d) The Board of Directors of Norcen may withdraw, modify or
change any recommendation with respect to the Offer:
(i) as permitted under Section 2.2(c); or
(ii) in the event that the conditions set forth in
Schedule E hereto are not satisfied or waived at the
applicable time by Norcen in its discretion acting
reasonably.
2.3 Offer Documents
---------------
(a) Within the time periods required by law, UPRI shall file or
cause to be filed with the appropriate Securities Authorities
an Offer to Purchase and Take-over Circular and the related
Letter of Transmittal and Notice of Guaranteed Delivery
pursuant to which the Offer will be made (collectively, the
"Offer Documents"). The Offer Documents, when filed with
Securities Authorities and when mailed to holders of Norcen
Shares, shall contain (or shall be amended in a timely manner
to contain) all information which is required to be included
therein in accordance with the Act and any applicable Canadian
provincial securities laws, United States securities laws, the
"blue sky" or securities laws of the states of the United
States and any other applicable law (collectively, the
"Securities Laws").
(b) Norcen agrees to provide such reasonable assistance as UPRI or
its agents may reasonably request in connection with
communicating the Offer and any amendments and supplements
thereto to the holders of the Norcen Shares and to such other
persons as are entitled to receive the Offer under Securities
Laws, including
<PAGE>
- 9 -
providing lists of the shareholders of Norcen and of the
holders of Norcen Options and other securities convertible
into or exchangeable for Norcen Shares (to the extent known by
Norcen) and mailing labels with respect to all such holders of
securities as soon as possible after the date of this
Agreement but in any event no later than the close of business
in Calgary on January 30, 1998 and updates or supplements
thereto from time to time as may be requested by UPRI.
(c) UPR and UPRI agree that, to the extent that it is the most
expedient filing process, the Offer shall be made pursuant to
and in compliance with the requirements of the Canada/United
States Multijurisdictional Disclosure System, including Rule
14d-1(b) under the United States Securities Exchange Act of
1934.
2.4 Outstanding Stock Options
-------------------------
Norcen and UPR agrees that to the extent holders of Norcen Options do
not exercise them and tender the Norcen Shares they receive upon such exercise,
Norcen may agree with all remaining holders of Norcen Options that, in lieu of
such persons exercising their Norcen Options, Norcen will pay to such persons
the difference between the exercise price of their Norcen Options and the
purchase price for the Norcen Shares under the Offer immediately after the
Expiry Time of the Offer in exchange for the termination of their Norcen
Options.
ARTICLE 3
PUBLICITY AND SOLICITATION
3.1 Publicity
---------
(a) Each of UPR, UPRI and Norcen shall receive the prior consent,
not to be unreasonably withheld, of the other parties prior to
issuing, or permitting any of its subsidiaries, directors,
officers, employees or agents to issue any press release or
other written statement to the press or any third party with
respect to this Agreement or the transactions contemplated
hereby. UPR, UPRI and Norcen shall not issue any such press
release or make any such public statement prior to such
consent, except upon the advice of counsel that such action is
required by applicable law or by obligations pursuant to any
listing agreement with a stock exchange and only after using
its best efforts to consult the other party taking into
account the time constraints to which it is subject as a
result of such law or obligation.
(b) Norcen and UPR agree that the press releases attached hereto
as Schedules C and D shall be issued immediately following the
execution of this Agreement.
<PAGE>
- 10 -
3.2 Solicitation
------------
The financial advisors to UPR and UPRI will act as dealer managers (the
"Dealer Managers") in connection with the Offer and solicit acceptances of the
Offer. The Dealer Managers will form a soliciting dealer group comprised of
members of the Investment Dealers Association of Canada and of the stock
exchanges in Canada and their United States broker dealer affiliates to solicit
acceptances of the Offer.
ARTICLE 4
TRANSACTIONS FOLLOWING COMPLETION OF THE OFFER
4.1 Second Stage Transaction
------------------------
If UPRI takes up and pays for Norcen Shares pursuant to the terms of
the Offer, and thereby acquires at least the Minimum Required Shares, UPRI
agrees to use all commercially reasonable efforts to acquire, and Norcen agrees
to use all commercially reasonable efforts to assist UPRI in acquiring, the
balance of the Norcen Shares as soon as practicable and in any event within a
period of six months following the Take-up Date by way of a statutory
arrangement, amalgamation, merger, reorganization, consolidation,
recapitalization or other type of acquisition transaction or transactions
("Second Stage Transaction") carried out for a cash consideration per Norcen
Share not less than the consideration paid pursuant to the Offer. Nothing herein
shall be construed to prevent UPRI from acquiring, directly or indirectly,
additional Norcen Shares in the open market or in privately negotiated
transactions, in accordance with Securities Laws (including by way of compulsory
acquisition) following completion of the Offer.
4.2 Information Circular, Etc.
--------------------------
Without limiting Section 4.1, Norcen agrees that if UPRI is required to
effect a Second Stage Transaction which requires approval of Norcen's
shareholders in a meeting of Norcen's shareholders, Norcen shall take all action
necessary in accordance with the Securities Laws, other applicable Canadian
laws, the Norcen Governing Documents and the requirements of The Toronto Stock
Exchange and the Montreal Exchange or any other regulatory authority having
jurisdiction to duly call, give notice of, convene and hold a meeting of its
shareholders as promptly as practicable to consider and vote upon the action
proposed by UPRI. In the event of such a meeting or meetings, Norcen shall use
all commercially reasonable efforts to mail to its shareholders an Information
Circular with respect to the meeting of Norcen's shareholders. The term
"Information Circular" shall mean such proxy or other required informational
statement or circular, as the case may be, and all related materials at the time
required to be mailed to Norcen's shareholders and all amendments or supplements
thereto, if any. UPRI and Norcen each shall use all commercially reasonable
efforts to obtain and furnish the information required to be included in any
Information Circular. The information provided and to be provided by UPRI and
Norcen for use in the Information Circular, on both the date the Information
Circular is first mailed to Norcen's shareholders and on the date any such
meeting is held, shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made,
not misleading and will comply in all material respects with all applicable
requirements of law. UPRI and Norcen each agree to correct promptly any such
<PAGE>
- 11 -
information provided by it for use in any Information Circular which shall have
become false or misleading.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF UPR AND UPRI
As of the date hereof, UPR and UPRI hereby jointly and severally
represent and warrant to Norcen as follows and acknowledge that Norcen is
relying upon these representations and warranties in connection with the
entering into of this Agreement:
5.1 Organization and Qualification
------------------------------
UPR is a corporation duly incorporated and organized and validly
existing under the laws of the State of Utah and has the requisite corporate
power and authority to carry on its business as it is now being conducted. UPRI
is a corporation duly incorporated and organized and validly subsisting under
the laws of the Province of Alberta and has the requisite corporate power and
authority to carry on its business as it is now being conducted.
5.2 Authority Relative to this Agreement
------------------------------------
UPR and UPRI have the requisite corporate authority to enter into this
Agreement and to carry out their obligations hereunder. The execution and
delivery of this Agreement and the consummation by UPR and UPRI of the
transactions contemplated hereby have been duly authorized by their respective
Boards of Directors and no other corporate proceedings on their part are or will
be necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each of UPR and
UPRI and constitutes the legal, valid and binding obligation of each of UPR and
UPRI enforceable against each of them in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and to general
principles of equity.
5.3 No Violations
-------------
(a) Neither the execution and delivery of this Agreement by UPR
and UPRI, the consummation by them of the transactions
contemplated hereby nor compliance by them with any of the
provisions hereof will: (i) violate, conflict with, or result
in breach of any provision of, require any consent, approval
or notice under, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) or result in a right of termination or acceleration
under, or result in a creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of
UPR or UPRI or any of their subsidiaries under, any of the
terms, conditions or provisions of (x) the charter or bylaws
of either UPR or UPRI or (y) any material note, bond,
mortgage, indenture, loan agreement, deed of trust, agreement,
lien, contract or other instrument or obligation to which UPR
or UPRI or any of their subsidiaries is a party or to which
any of them, or any of their respective properties or assets,
may be subject or by which either UPR or UPRI or any of their
subsidiaries is bound; or (ii) subject to compliance with the
statutes and regulations
<PAGE>
- 12 -
referred to in Section 5.3(b), violate any judgment, ruling,
order, writ, injunction, determination, award, decree,
statute, ordinance, rule or regulation applicable to UPR or
UPRI or any of their subsidiaries (except, in the case of each
of clauses (i) and (ii) above, for such violations, conflicts,
breaches, defaults, terminations which, or any consents,
approvals or notices which if not given or received, would not
have any material adverse effect on the business, operations
or financial condition of UPR and its subsidiaries taken as a
whole or on the ability of UPR to consummate the transactions
contemplated hereby).
(b) Other than in connection with or in compliance with the
provisions of Securities Laws, the Competition Act (Canada),
the Public Utilities Board Act (Alberta), the Gas Utilities
Act (Alberta), the requirements of the National Energy Board
(Canada), the Investment Canada Act (Canada), the rules of The
Toronto Stock Exchange, the Montreal Exchange, the United
States Securities Exchange Act of 1934, as amended, state
securities or "blue-sky" laws of the states of the United
States, as amended, Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (United States), as amended (the "HSR Act"), and
any other pre-merger notification statutes, (i) there is no
legal impediment to UPR and UPRI's consummation of the
transactions contemplated by this Agreement and (ii) no filing
or registration with, or authorization, consent or approval
of, any domestic or foreign public body or authority is
necessary by UPRI in connection with the making or the
consummation of the Offer, except for such filings or
registrations which, if not made, or for such authorizations,
consents or approvals, which, if not received, would not have
a material adverse effect on the ability of UPRI to consummate
the transactions contemplated hereby.
5.4 Funds Available
---------------
The aggregate cash consideration payable pursuant to the Offer is
available to UPRI so that UPRI is in a position to pay for all Norcen Shares
tendered pursuant to the Offer in accordance with the terms of the Offer.
5.5 Knowledge
---------
As of the date hereof, UPR has no actual knowledge of any
misrepresentation, breach or non-performance by Norcen of any representation,
warranty or covenant contained in this Agreement which would have or would be
reasonably likely to have a material adverse effect on UPR should the Offer be
completed.
<PAGE>
- 13 -
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF NORCEN
As of the date hereof, Norcen hereby represents and warrants to UPR and
UPRI as follows and acknowledges that they are relying upon these
representations and warranties in connection with the entering into of this
Agreement:
6.1 Organization and Qualification
------------------------------
Norcen is a corporation duly amalgamated and organized and validly
existing under the federal laws of Canada and has the requisite corporate power
and authority to carry on its business as it is now being conducted. Each of
Norcen's subsidiaries is a corporation duly incorporated and organized and
validly subsisting under the laws of the jurisdiction of its incorporation and
has the requisite corporate power and authority to carry on its business as now
being conducted. Norcen and each of its subsidiaries is duly registered to do
business and is in good standing in each jurisdiction in which the character of
its properties, owned or leased, or the nature of its activities make such
registration necessary, except where the failure to be so registered or in good
standing would not have a material adverse effect on Norcen and its subsidiaries
taken as a whole.
6.2 Authority Relative to this Agreement
------------------------------------
Norcen has the requisite corporate authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by Norcen's Board of Directors, and no other corporate
proceedings on the part of Norcen are necessary to authorize this Agreement
(except for obtaining shareholder approval in respect of any Second Stage
Transaction) and the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Norcen and constitutes the legal, valid and
binding obligation of Norcen enforceable against Norcen in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and to general principles of equity.
6.3 No Violations
-------------
(a) Except as previously disclosed in writing to UPR, neither the
execution and delivery of this Agreement by Norcen, the
consummation of the transactions contemplated hereby nor
compliance by Norcen with any of the provisions hereof will:
(i) violate, conflict with, or result in breach of any
provision of, require any consent, approval or notice under,
or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or result
in a right of termination or acceleration under, or result in
a creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of Norcen or
any of its subsidiaries under, any of the terms, conditions or
provisions of (x) the Norcen Governing Documents or (y) any
material note, bond, mortgage, indenture, loan agreement, deed
of trust, agreement, lien, contract or other instrument or
obligation to which Norcen or any of its subsidiaries is a
party or to which any of them, or any of their respective
properties or assets, may be subject or by which Norcen or any
of its subsidiaries is
<PAGE>
- 14 -
bound; or (ii) subject to compliance with the statutes and
regulations referred to in Section 6.3(b), violate any
judgment, ruling, order, writ, injunction, determination,
award, decree, statute, ordinance, rule or regulation
applicable to Norcen or any of its subsidiaries (except, in
the case of each of clauses (i) and (ii) above, for such
violations, conflicts, breaches, defaults, terminations which,
or any consents, approvals or notices which if not given or
received, would not have any material adverse effect on the
business, operations or financial condition of Norcen and its
subsidiaries taken as a whole or on the ability of Norcen to
consummate the transactions contemplated hereby).
(b) Except as previously disclosed in writing to UPR, other than
in connection with or in compliance with the provisions of
Securities Laws, the Competition Act (Canada), the Public
Utilities Board Act (Alberta), the Gas Utilities Act
(Alberta), the requirements of the National Energy Board
(Canada), the Investment Canada Act (Canada), the rules of The
Toronto Stock Exchange, the Montreal Exchange, the United
States Securities Exchange Act of 1934, as amended, state
securities or "blue- sky" laws of the states of the United
States, as amended, the HSR Act, and any other pre-merger
notification statutes, (i) there is no legal impediment to
Norcen's consummation of the transactions contemplated by this
Agreement and (ii) no filing or registration with, or
authorization, consent or approval of, any domestic or foreign
public body or authority is necessary by Norcen in connection
with the making or the consummation of the Offer, except for
such filings or registrations which, if not made, or for such
authorizations, consents or approvals, which, if not received,
would not have a material adverse effect on the ability of
Norcen to consummate the transactions contemplated hereby.
6.4 Capitalization
--------------
As of the date hereof, the authorized share capital of Norcen consists
of an unlimited number of Common Shares, First Preference Shares and Junior
Preference Shares. As of the date hereof, 187,028,147 Norcen Shares are issued
and outstanding. As of the date hereof, 1,615,406 Norcen Shares are issuable
pursuant to the exercise of outstanding Norcen Options granted under the Stock
Option Plan calculated at the Offer Price of $19.80. Except as set forth above,
there are no options, warrants or other rights, agreements or commitments of any
character whatsoever requiring the issuance, sale or transfer by Norcen of any
shares of Norcen (including the Norcen Shares) or any securities convertible
into, or exchangeable or exercisable for, or otherwise evidencing a right to
acquire, any shares of Norcen (including the Norcen Shares), nor are there any
outstanding stock appreciation rights, phantom equity or similar rights,
agreements, arrangements or commitments based upon the book value, income or
other attribute of Norcen. All outstanding Norcen Shares have been duly
authorized and validly issued, are fully paid and non-assessable and are not
subject to, nor were they issued in violation of, any preemptive rights, and all
Norcen Shares issuable upon exercise of outstanding stock options in accordance
with their respective terms will be duly authorized and validly issued, fully
paid and non-assessable and will not be subject to any preemptive rights.
<PAGE>
- 15 -
6.5 No Material Adverse Change
--------------------------
Since December 31, 1997, there has not been any Material Adverse
Change.
6.6 No Undisclosed Material Liabilities
-----------------------------------
Except (a) as disclosed or reflected in the consolidated internal
interim unaudited financial statements of Norcen as at December 31, 1997
previously delivered to UPR, and (b) for liabilities and obligations (i)
incurred in the ordinary course of business and consistent with past practice,
(ii) pursuant to the terms of this Agreement, or (iii) as disclosed in writing
to UPR, neither Norcen or any of its subsidiaries has incurred any liabilities
of any nature, whether accrued, contingent or otherwise (or which would be
required by generally accepted accounting principles to be reflected on a
consolidated balance sheet of Norcen and its subsidiaries) that have constituted
or would be reasonably likely to constitute a Material Adverse Change.
6.7 Impairment
----------
The making of the Offer will not result in Material Adverse Change.
6.8 Officer Obligations
-------------------
The Officer Obligations do not exceed an aggregate of $5.5 million.
6.9 Brokerage Fees
--------------
Norcen has not retained nor will it retain any financial advisor,
broker, agent or finder or paid or agreed to pay any financial advisor, broker,
agent or finder on account of this Agreement, any transaction contemplated
hereby or any transaction presently ongoing or contemplated, except that
Goldman, Sachs & Co. and Trilon Securities Limited have been retained as
Norcen's financial advisors in connection with certain matters including the
transactions contemplated hereby. Norcen has delivered to UPRI a true and
complete copy of its agreement with Goldman, Sachs & Co. and Trilon Securities
Limited.
6.10 Conduct of Business
-------------------
Since December 31, 1997, neither Norcen nor any of its subsidiaries has
taken any action that would be in violation of Section 7.1 if such provision had
been in effect since such date, other than violations which would not have any
material adverse effect on the business, operations or financial condition of
Norcen and its subsidiaries considered as a whole or would materially affect
Norcen's ability to consummate the transactions contemplated hereby.
6.11 Reports
-------
(a) Norcen has heretofore delivered to UPRI true and complete
copies of (i) Norcen's 1997 Annual Information Form,
Information Circular relating to Norcen's 1997 annual and
special meeting of shareholders and 1996 Annual Report to
shareholders and (ii) all prospectuses or other offering
documents used by Norcen in the offering
<PAGE>
- 16 -
of its securities or filed with Securities Authorities since
December 31, 1996 and (iii) the consolidated internal interim
unaudited financial statements of Norcen dated December 31,
1997 previously delivered to UPR. As of their respective
dates, such form, statements, prospectuses and other offering
documents (including all exhibits and schedules thereto and
documents incorporated by reference therein) did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading and complied in all
material respects with all applicable requirements of law. The
audited financial statements and unaudited interim financial
statements of Norcen and its consolidated subsidiaries
publicly issued by Norcen, previously delivered to UPR, or
included or incorporated by reference in such form,
statements, prospectuses and other offering documents were
prepared in accordance with generally accepted accounting
principles in Canada (except (i) as otherwise indicated in
such financial statements and the notes thereto or, in the
case of audited statements, in the related report of Norcen's
independent accountants or (ii) in the case of unaudited
interim financial statements, to the extent they may not
include footnotes or may be condensed or summary statements),
and fairly present the consolidated financial position,
results of operations and changes in financial position of
Norcen and its consolidated subsidiaries as of the dates
thereof and for the periods indicated therein (subject, in the
case of any unaudited interim financial statements, to normal
year-end audit adjustments).
(b) Norcen will deliver to UPRI as soon as they become available
true and complete copies of any report or statement filed by
it with Securities Authorities subsequent to the date hereof.
As of their respective dates, such reports and statements
(excluding any information therein provided by UPRI, as to
which Norcen makes no representation) will not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they are made, not misleading and will comply in
all material respects with all applicable requirements of law.
The consolidated financial statements of Norcen issued by
Norcen or to be included in such reports and statements
(excluding any information therein provided by UPRI, as to
which Norcen makes no representation) will be prepared in
accordance with generally accepted accounting principles in
Canada (except (i) as otherwise indicated in such financial
statements and the notes thereto or, in the case of audited
statements, in the related report of Norcen's independent
accounts or (ii) in the case of unaudited interim financial
statements, to the extent they may not include footnotes or
may be condensed or summary statements) and will present
fairly the consolidated financial position, results of
operations and changes in financial position of Norcen as of
the dates thereof and for the periods indicated therein
(subject, in the case of any unaudited interim financial
statements, to normal year-end audit adjustments).
<PAGE>
- 17 -
6.12 U.S. Registration
-----------------
The Norcen Shares were not issued by a closed-end investment company
registered under the United States Investment Company Act of 1940.
6.13 Subsidiaries
------------
All of Norcen's subsidiaries are wholly-owned by Norcen and all shares
of Norcen's material subsidiaries owned by Norcen are beneficially owned,
directly or indirectly, with valid and marketable title thereto, free and clear
of any and all liens, charges, security interests, adverse claims, encumbrances
and demands of any nature or kind whatsoever.
ARTICLE 7
CONDUCT OF BUSINESS
7.1 Conduct of Business by Norcen
-----------------------------
Norcen covenants and agrees that, during the period from the date of
this Agreement until either: (i) the time of the next annual meeting of
shareholders of Norcen at which directors are to be elected; or (ii) this
Agreement is terminated by its terms, unless UPRI shall otherwise agree in
writing, except as required by law or in connection with a Take-over Proposal or
as otherwise expressly permitted or specifically contemplated by this Agreement:
(a) the business of Norcen and its subsidiaries shall be conducted
only in, and Norcen and its subsidiaries shall not take any
action except in, the usual and ordinary course of business
and consistent with past practice, and Norcen shall use all
commercially reasonable efforts to maintain and preserve its
business organization, assets, employees and advantageous
business relationships;
(b) Norcen shall not directly or indirectly do or permit to occur
any of the following: (i) amend the Norcen Governing
Documents; (ii) declare, set aside or pay any dividend or
other distribution or payment (whether in cash, shares or
property) in respect of its shares owned by any person; (iii)
issue, grant, sell or pledge or agree to issue, grant, sell or
pledge any shares of Norcen or its subsidiaries, or securities
convertible into or exchangeable or exercisable for, or
otherwise evidencing a right to acquire, shares of Norcen or
its subsidiaries, other than Norcen Shares issuable pursuant
to the terms of the Norcen Options; (iv) redeem, purchase or
otherwise acquire any of its outstanding shares or other
securities; (v) split, combine or reclassify any of its
shares; (vi) adopt a plan of liquidation or resolutions
providing for the liquidation, dissolution, merger,
consolidation or reorganization of Norcen; or (vii) enter into
or modify any contract, agreement, commitment or arrangement
with respect to any of the foregoing, except as permitted
above;
(c) neither Norcen nor any of its subsidiaries shall directly or
indirectly do any of the following other than pursuant to
commitments entered into prior to the date of this Agreement:
(i) sell, pledge, dispose of or encumber any assets except in
the ordinary course of business for a consideration not in
excess of $15 million in aggregate; (ii)
<PAGE>
- 18 -
acquire (by merger, amalgamation, consolidation or acquisition
of shares or assets) any corporation, partnership or other
business organization or division thereof, or, except for
investments in securities made in the ordinary course of
business, make any investment either by purchase of shares or
securities, contributions of capital (other than to
subsidiaries), property transfer, or, except in the ordinary
course of business, purchase of any property or assets of any
other individual or entity, in each case having a value in
excess of $15 million; (iii) incur any indebtedness for
borrowed money or any other material liability or obligation
or issue any debt securities or assume, guarantee, endorse or
otherwise as an accommodation become responsible for, the
obligations of any other individual or entity, or make any
loans or advances, in each case in excess of $15 million,
except in the ordinary course of business; (iv) except for the
Officer Obligations or amounts less than $15 million pay,
discharge or satisfy any material claims, liabilities or
obligations other than the payment, discharge or satisfaction
in the ordinary course of business consistent with past
practice of liabilities reflected or reserved against in its
financial statements or incurred in the ordinary course of
business consistent with past practice; (v) authorize,
recommend or propose any release or relinquishment of any
material contract right other than in the ordinary course of
business consistent with past practice; (vi) waive, release,
grant or transfer any rights of material value or modify or
change in any material respect any existing material license,
lease, contract, production sharing agreement, government land
concession or other document, other than in the ordinary
course of business consistent with past practice; (vii) enter
into any interest rate swaps, currency swaps or any other rate
fixing agreement for a financial transaction or enter into any
call arrangement of any sort or any forward sale agreement for
commodities, other than in the ordinary course of business
consistent with past practice; (viii) authorize or propose any
of the foregoing, or enter into or modify any contract,
agreement, commitment or arrangement to do any of the
foregoing; or (ix) sell, dispose of, cancel or terminate any
of its remaining 10% interest in Superior Propane Inc. and its
management, administration and related contracts respecting
Superior Propane Inc. and Superior Propane Income Fund, nor
enter into any agreement concerning any such sale,
cancellation or termination;
(d) neither Norcen nor any of its subsidiaries shall create any
new Officer Obligations other than as provided for in Section
9.7 and, except for payment of the existing Officer
Obligations, neither Norcen nor any of its subsidiaries shall
grant to any officer or director an increase in compensation
in any form, grant any general salary increase other than in
accordance with the requirements of any existing collective
bargaining or union contracts, grant to any other employee any
increase in compensation in any form other than routine
increases in the ordinary course of business consistent with
past practices, make any loan to any officer or director, or
take any action with respect to the grant of any severance or
termination pay (other than as contemplated pursuant to
Section 9.2 of this Agreement) arising from the Offer or a
change of control of Norcen or the entering into of any
employment agreement with, any senior officer or director, or
with respect to any increase of benefits payable under its
current severance or termination pay policies; and
<PAGE>
- 19 -
(e) neither Norcen nor any of its subsidiaries shall adopt or
amend or make any contribution to any bonus, profit sharing,
option, pension, retirement, deferred compensation, insurance,
incentive compensation, other compensation or other similar
plan, agreement, trust, fund or arrangements for the benefit
of employees, except as is necessary to comply with the law or
with respect to existing provisions of any such plans,
programs, arrangements or agreements.
ARTICLE 8
COVENANTS OF NORCEN
8.1 Notice of Material Change
-------------------------
From the date hereof until the termination of this Agreement, Norcen
shall promptly notify UPR in writing of:
(a) any material change (actual, anticipated, contemplated or, to
the knowledge of Norcen, threatened, financial or otherwise)
in the business, affairs, operations, assets, liabilities
(contingent or otherwise) or capital of Norcen and its
subsidiaries considered as a whole; or
(b) any change in any representation or warranty set forth in
Article 6 which change is or may be of such a nature as to
render any such representation or warranty misleading or
untrue in a material respect.
Norcen shall in good faith discuss with UPR any change in circumstances
(actual, anticipated, contemplated or, to the knowledge of Norcen,
threatened, financial or otherwise) which is of such a nature that
there may be a reasonable question as to whether notice need to be
given to UPRI pursuant to this section.
8.2 Non-Completion Fee
------------------
Provided that there is no breach or non-performance by UPR or UPRI of a
material provision of this Agreement in any material respect, Norcen shall pay
to UPRI the sum of $125 million if:
(a) the Offer shall have expired and not been consummated by
reason of the Minimum Condition not having been satisfied but
only if a Superior Take-over Proposal, as a result of which
the Board of Directors of Norcen has withdrawn, modified or
changed its recommendation regarding the Offer, has been
publicly announced and not withdrawn prior to the Expiry Time;
or
(b) this Agreement has been terminated by UPR pursuant to Section
11.1(e).
In the circumstances set forth above Norcen shall pay to UPRI an amount
equal to all documented and reasonable out of pocket expenses incurred
by UPR and UPRI in making the Offer, including the fees payable to its
financial advisors and legal counsel and all fees,
<PAGE>
- 20 -
costs and expenses incurred in arranging the financing for the Offer
which shall not exceed $30 million.
Such payments shall be made by Norcen to UPRI within two Business Days
of the event giving rise to the payment in immediately available funds
to an account designated by UPRI.
8.3 No Solicitation
---------------
(a) Norcen shall immediately cease and cause to be terminated all
existing discussions and negotiations, if any, with any
parties conducted before the date of this Agreement with
respect to any Take-over Proposal and, without limitation,
shall immediately send a letter in substantially the form of
the letter attached hereto as Schedule F to all parties who
have had such discussions or negotiations or who have entered
into confidentiality agreements with Norcen pertaining to the
sale of Norcen or a substantial portion of its assets. Norcen
shall immediately advise UPRI orally and in writing of any
response or action (actual, anticipated, contemplated or
threatened) by any recipient of such letter which could
hinder, prevent or delay or otherwise adversely affect the
completion of the Offer. Norcen agrees not to release any
third party from any confidentiality or standstill obligation
set forth in any agreement to which Norcen and such third
party are parties except for the standstill obligation in
connection with a Superior Take-over Proposal by such third
party.
(b) Neither Norcen nor any of its subsidiaries, or any of their
respective directors, officers, employees, agents, financial
advisors, counsel or other representatives shall, directly or
indirectly, (i) solicit, initiate or knowingly encourage the
initiation or continuation of any inquiries, discussions,
negotiations, proposals or offers from any corporation, person
or other entity or group (other than UPR and its subsidiaries
and their respective directors, officers, employees, agents,
financial advisors, counsel or other representatives) in
respect of any matter or thing which is inconsistent with the
successful completion of the Offer and the merger of UPRI and
Norcen, including any Take-over Proposal or (ii) provide any
confidential information to, participate in any discussions or
negotiations relating to any Take-over Proposal with, or
otherwise cooperate with or assist or participate in any
effort to consider, review or initiate a Take-over Proposal
by, any corporation, person or other entity or group;
provided, however, that Norcen shall not be bound by the
foregoing restrictions in this Section 8.3(b)(ii) in respect
of any proposal or offer in writing received by Norcen from
another party, which offer was not solicited by Norcen or any
of its subsidiaries or, of any of their respective directors,
officers, employees, agents, financial advisors, counsel or
other representatives after the date hereof, which the Board
of Directors of Norcen believes is reasonably likely to become
a Superior Take-over Proposal and at any such time that Norcen
or its Board of Directors starts to provide any confidential
information in accordance with this proviso, Norcen shall so
notify UPR of any such provision of confidential information
and provided further that the provision of any such
confidential information shall be on terms and conditions no
more favorable to such other party than those contained in the
confidentiality agreement dated January 5, 1998 between UPR
and Norcen.
<PAGE>
- 21 -
8.4 Norcen Board of Directors
-------------------------
The Board of Directors of Norcen immediately following the acquisition
by UPRI of more than 50% of the outstanding Norcen Shares pursuant to the Offer
shall be reconstituted through resignations of all existing Norcen directors and
the appointment of UPR nominees in their stead. Norcen shall, in accordance with
the foregoing and subject to the provisions of the Act, assist UPR to secure the
resignations of all Norcen directors to be effective at such time as may be
required by UPR and to use its best efforts to cause the election of the UPR
nominees to fill the vacancies so created in order to effect the foregoing
without the necessity of a shareholder meeting.
8.5 Structure of Transaction
------------------------
Norcen shall cooperate with UPR in structuring the acquisition by UPRI
of Norcen in a tax efficient manner, including without limitation, by completing
to the satisfaction of UPR, acting reasonably, a possible internal corporate
reorganization of Norcen involving the transfer of certain unincorporated
business divisions to separate wholly-owned Canadian subsidiary corporations
provided that such reorganization shall not be completed until Norcen is
satisfied the Offer will be completed, provided that no such cooperation shall
be required where such structuring shall have a material adverse effect on the
business, operations or financial condition of Norcen or cause any breach of or
default under this Agreement by Norcen.
ARTICLE 9
COVENANTS OF UPRI
9.1 Availability of Funds
---------------------
UPR and UPRI covenant and agree that at all times when the Offer is
outstanding, UPRI shall not take any action, or fail to take any action, which
would or could result in the representation and warranty set out in Section 5.4
being untrue in any material respect at any time while the Offer is outstanding.
9.2 Employment Agreements
---------------------
UPRI covenants and agrees, and after the Effective Time will cause
Norcen and any successor to Norcen to agree, to honour and comply with the terms
of those existing executive termination and severance agreements, plans or
policies of Norcen and its subsidiaries which Norcen has disclosed to UPR in
writing prior to the date hereof.
9.3 Officers' and Directors' Insurance
----------------------------------
UPRI agrees to use reasonable efforts to secure directors and officers
liability insurance coverage for Norcen's current and former directors and
officers on a six year "trailing" or "runoff" basis from and after the Effective
Time. If a "trailing" policy is not available, then UPRI agrees that for the
entire period from the Effective Time until six years after the Effective Time,
UPRI will use reasonable commercial efforts to cause Norcen or any successor to
Norcen to maintain Norcen's current directors' and officers' insurance policy or
an equivalent policy, subject in either case to
<PAGE>
- 22 -
terms and conditions no less advantageous to the directors and officers of
Norcen than those contained in the policy in effect on the date hereof, for all
present and former directors and officers of Norcen, covering claims made prior
to or within six years after the Effective Time.
9.4 Employment Termination
----------------------
If UPR, UPRI or Norcen choose to terminate, whether constructively or
actually, the employment of any employees (other than for cause) of Norcen
within one year of the completion of the Offer, notice and severance shall be
provided to such employees in accordance with Norcen's existing severance
practices previously disclosed in writing to UPR.
9.5 Indemnities
-----------
UPR agrees that if it acquires the Norcen Shares under the Offer it
shall cause Norcen to fulfill its obligations pursuant to indemnities provided
or available to past and present officers and directors of Norcen pursuant to
the provisions of the By-laws of Norcen, the Canada Business Corporation Act,
and the written indemnity agreements shown to UPR which will be entered into
between Norcen and its current officers and directors.
9.6 Holdco Purchase
---------------
The Offer will provide that any corporate holder of Norcen Shares which
holds such shares indirectly through a holding corporation (a "Holdco") may
deposit all of the outstanding shares of its Holdco under the Offer in
accordance with a share purchase agreement substantially in the form attached
hereto as Schedule G.
9.7 Retention Bonus
---------------
Norcen shall be entitled to establish and pay up to $4.5 million in
bonuses to officers and employees of Norcen mutually agreed upon by Norcen and
UPR who agree to and do remain in the employment of Norcen for an agreed upon
period of time following the change of control of Norcen.
ARTICLE 10
MUTUAL COVENANTS
10.1 Other Filings
-------------
UPR, UPRI and Norcen shall, as promptly as practicable hereafter,
prepare and file any filings required under the Competition Act (Canada), the
Investment Canada Act (Canada), the Public Utilities Board Act (Alberta), the
Gas Utilities Act (Alberta), the requirements of the National Energy Board
(Canada), any Securities Law, the rules of The Toronto Stock Exchange and the
Montreal Exchange, the United States Securities Exchange Act of 1934, as
amended, state securities or "blue-sky" laws of the states of the United States,
as amended, the HSR Act or any other applicable law relating to the transactions
contemplated herein.
<PAGE>
- 23 -
10.2 HSR Filings
-----------
(a) Without limiting the generality of Section 10.1 hereof, UPR,
UPRI and Norcen shall (i) take promptly all actions necessary
to make the filings required of UPR, UPRI, Norcen or any of
their affiliates under the HSR Act, (ii) comply at the
earliest practicable date with any request for additional
information or documentary material received by UPR, UPRI,
Norcen or any of their affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of
Justice pursuant to the HSR Act and (iii) cooperate in
connection with any filing under the HSR Act and in connection
with resolving any investigation or other inquiry concerning
the transactions contemplated by this Agreement commenced by
either the Federal Trade Commission or the Antitrust Division
of the Department of Justice or state attorneys general; and
(b) Each of the parties hereto shall promptly inform the other
parties of any material communication received by such party
from the Federal Trade Commission, the Antitrust Division of
the Department of Justice or any other governmental or
regulatory authority regarding any of the transactions
contemplated hereby. UPR and UPRI shall advise Norcen promptly
of any understandings, undertakings or agreements which UPR
and UPRI proposes to make or enter into with the Federal
Trade Commission, the Antitrust Division of the Department of
Justice or any other governmental or regulatory authority in
connection with the transactions contemplated hereby.
10.3 Additional Agreements
---------------------
Subject to the terms and conditions herein provided and to fiduciary
obligations under applicable law, each of the parties hereto agrees to use all
commercially reasonable efforts to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions contemplated by
this Agreement and to cooperate with each other in connection with the
foregoing, including using commercially reasonable efforts (i) to obtain all
necessary waivers, consents and approvals from other parties to material
agreements, leases and other contracts or agreements (including, without
limitation, the agreement of any persons as may be required pursuant to any
agreement, arrangement or understanding relating to Norcen's operations), (ii)
to obtain all necessary consents, approvals and authorizations as are required
to be obtained under any federal, provincial or foreign law or regulations,
(iii) to defend all lawsuits or other legal proceedings challenging this
Agreement or the consummation of the transactions contemplated hereby, (iv) to
cause to be lifted or rescinded any injunction or restraining order or other
order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby, (v) to effect all necessary registrations and
other filings and submissions of information requested by governmental
authorities and (vi) to fulfill all conditions and satisfy all provisions of
this Agreement and the Offer. For purposes of the foregoing, the obligation to
use "commercially reasonable efforts" to obtain waivers, consents and approvals
to loan agreements, leases and other contracts shall not include any obligation
to agree to a materially adverse modification of the terms of such documents or
to prepay or incur additional material obligations to such other parties.
<PAGE>
- 24 -
10.4 Access to Information
---------------------
Subject to the existing Confidentiality Agreement between Norcen and
UPR dated January 5, 1998, upon reasonable notice, Norcen shall (and shall cause
each of its subsidiaries to) afford UPR's officers, employees, counsel,
accountants and other authorized representatives and advisers reasonable access,
during normal business hours and at such other time or times as UPR may
reasonably request from the date hereof and until the expiration of this
Agreement, to its properties, books, contracts and records as well as to its
management personnel, and, during such period, Norcen shall (and shall cause
each of its subsidiaries to) furnish promptly to UPR all information concerning
its business, properties and personnel as UPR may reasonably request.
ARTICLE 11
TERMINATION, AMENDMENT AND WAIVER
11.1 Termination
This Agreement may be terminated by written notice given to the other
parties hereto, at any time prior to completion of the transactions contemplated
hereby:
(a) by mutual written consent of Norcen and UPR;
(b) by either UPR or Norcen if UPRI shall not have taken up and
paid for the Minimum Required Shares under the Offer on or
before the times required by this Agreement, unless the
absence of such occurrence shall be due to the failure of the
party seeking to terminate this Agreement to perform the
obligations under this Agreement required to be performed by
it;
(c) by either UPR or Norcen if a court of competent jurisdiction
or a governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or
taken any other action permanently restraining, enjoining or
otherwise prohibiting any of the transactions contemplated by
this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable, provided that the
party seeking to terminate this Agreement pursuant to this
Section 11.1(c) shall have used all commercially reasonable
efforts to remove such order, decree, ruling or injunction;
(d) by either UPR or Norcen, if the Offer terminates or expires at
the Expiry Time, without UPRI taking up and paying for any
Norcen Shares on account of the failure of any condition
specified in Schedule A which has not been waived by UPRI,
unless the absence of such occurrence shall be due to the
failure of the party seeking to terminate this Agreement to
perform the obligations under this Agreement required to be
performed by it;
(e) by either UPR or Norcen, if there has been a
misrepresentation, breach or non-performance by the other
party of any representation, warranty or covenant contained
<PAGE>
- 25 -
in this Agreement which would have or would be reasonably
likely to have a material adverse effect on the party seeking
to terminate, provided the breaching party has been given
notice of and three days to cure any such misrepresentation,
breach or non-performance;
(f) by Norcen or UPR if Norcen enters into an agreement providing
for a Superior Takeover Proposal;
(g) by Norcen if the Take-up Date has not occurred within 60 days
of the Initial Expiry Time; or
(h) by UPR if there has been a misrepresentation, breach or
non-performance by Noranda Inc. of any representation,
warranty or covenant contained in the pre-tender agreement
referred to in Section 2.2(b), which would have or would be
reasonably likely to have a material adverse effect on UPR,
provided that Noranda Inc. shall have been given notice of and
three days to cure any such misrepresentation, breach or
non-performance.
11.2 Effect of Termination
---------------------
In the event of the termination of this Agreement as provided in
Section 11.1, this Agreement shall forthwith have no further force or effect and
there shall be no obligation on the part of UPR, UPRI or Norcen hereunder except
as set forth in Sections 8.2 and 12.4 and this Section 11.2, which provisions
shall survive the termination of this Agreement. Nothing herein shall relieve
any party from liability for any breach of this Agreement provided that if
Norcen became obligated to and has paid the fees provided for in Section 8.2,
Norcen shall have no further liability under this Agreement.
11.3 Amendment
---------
This Agreement may be amended by mutual agreement between the parties
hereto. This Agreement may not be amended except by an instrument in writing
signed by the appropriate officers on behalf of each of the parties hereto.
11.4 Waiver
------
Each of UPR and UPRI, on the one hand, and Norcen, on the other hand,
may (i) extend the time for the performance of any of the obligations or other
acts of the other, (ii) waive compliance with any of the other's agreements or
the fulfillment of any conditions to its own obligations contained herein or
(iii) waive inaccuracies in any of the other's representations or warranties
contained herein or in any document delivered by the other party hereto;
provided, however, that any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
<PAGE>
- 26 -
ARTICLE 12
GENERAL PROVISIONS
12.1 Notices
-------
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered or sent if delivered personally or sent by cable, telegram,
telecopier or telex or sent by prepaid overnight carrier to the parties at the
following addresses (or at such other addresses as shall be specified by the
parties by like notice):
(a) if to UPR and UPRI:
Union Pacific Resources Company
P.O. Box 7
Forth Worth, Texas 76101
Attention: Mr. Joe LaSala
Telecopy No.: (817) 877-7522
with a copy to:
Bennett Jones Verchere - and - Morgan, Lewis & Bockius LLP
4500 Bankers Hall East 101 Park Avenue
855 - 2nd Street SW New York, New York
Calgary, Alberta U.S.A. 10178-0060
T2P 4K7
Attention: Mr. John Curran Attention: Mr. Howard Shecter
Telecopy No.: (403) 265-7219 Telecopy No.: (212) 309-7044
(b) if to Norcen:
Norcen Energy Resources Limited
Fifth Avenue Place
425 - 1 Street S.W.
Calgary, Alberta
T2P 4V4
Attention: Mr. Mark Schweitzer
Telecopy No.: (403) 231-0292
<PAGE>
- 27 -
with a copy to:
MacKimmie Matthews
700, 401 - 9 Avenue S.W.
Calgary, Alberta
T2P 3C5
Attention: Mr. Robert Engbloom
Telecopy No.: (403) 232-0888
12.2 Miscellaneous
-------------
This Agreement (i) except for the Confidentiality Agreement dated
January 5, 1998 between the parties hereto, constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
between the parties, with respect to the subject matter hereof and (ii) shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The parties hereto shall be entitled to rely upon
delivery of an executed facsimile copy of the Agreement, and such facsimile copy
shall be legally effective to create a valid and binding agreement among the
parties hereto. The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the Province of Alberta having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
12.3 Assignment
----------
Except as expressly permitted by the terms hereof, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties. UPRI may assign all or any part of its rights or obligations
under this Agreement to a direct or indirect wholly-owned subsidiary of UPRI,
provided that any such assignment will have no material adverse tax or other
effects to Norcen or the holders of Norcen Shares, and provided further that if
such assignment takes place, UPR and UPRI shall continue to be liable to Norcen
for any default in performance by the assignee.
12.4 Expenses
--------
Except as provided in Section 8.2, all fees, costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such cost or expense, whether or not
the Offer is consummated.
<PAGE>
- 28 -
12.5 Severability
------------
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law.
Any provision of this Agreement that is invalid or unenforceable in any
jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.6 Confidentiality Agreement
-------------------------
UPR is hereby released from the provisions of Section 5 of the
Confidentiality Agreement dated January 5, 1998 between UPR and Norcen in
respect of the transaction contemplated by the Offer.
<PAGE>
- 29 -
12.7 Counterpart Execution
This Agreement may be executed in any number of counterparts and each
such counterpart shall be deemed to be an original instrument but all such
counterparts together shall constitute one agreement.
IN WITNESS WHEREOF, UPR, UPRI and Norcen have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
UNION PACIFIC RESOURCES GROUP
INC.
Per:
-----------------------------------
Name:
Title:
Per:
-----------------------------------
Name:
Title:
UNION PACIFIC RESOURCES INC.
Per:
-----------------------------------
Name:
Title:
Per:
-----------------------------------
Name:
Title:
NORCEN ENERGY RESOURCES
LIMITED
Per:
-----------------------------------
Name:
Title:
Per: -----------------------------------
Name:
Title:
<PAGE>
SCHEDULE A
CONDITIONS TO THE OFFER
-----------------------
The capitalized terms used in this Schedule A have the meanings set
forth in the attached Pre- Acquisition Agreement dated January 25, 1998 (the
"Agreement") between UPR, UPRI and Norcen, except that the term "Offeror" shall
be deemed to refer to UPRI.
Notwithstanding any other provision of the Offer, but subject to the
provisions of the Agreement, the Offeror reserves the right to withdraw or
terminate the Offer and not take up and pay for, or to extend the period of time
during which the Offer is open and postpone taking up and paying for, any Norcen
Shares deposited under the Offer unless all of the following conditions are
satisfied or waived by the Offeror:
(a) at the Expiry Time, and at the time the Offeror first takes up and pays
for Norcen Shares under the Offer, there shall have been validly
deposited under the Offer and not withdrawn at least 75% of the
outstanding Norcen Shares (calculated on a diluted basis), other than
Norcen Shares held at the date of the Offer by or on behalf of the
Offeror, or its affiliates or associates (as each of such terms is
defined in the Act);
(b) (i) the Director of Investigation and Research (the "Director")
appointed under the Competition Act shall have issued an advance ruling
certificate under Section 102 of the Competition Act in respect of the
transaction (the "Transaction") which will result from the acquisition
of Norcen Shares by the Offeror under the Offer, or (ii) the applicable
waiting period under Section 123 of the Competition Act shall have
expired without the Director having notified the Offeror that he
intends to make an application to the Competition Tribunal for an order
under Section 92 of the Competition Act in respect of the Transaction;
or (iii) the Director shall have advised the Offeror that he does not
intend at the current time to apply to the Competition Tribunal for an
order under Section 92 of the Competition Act in respect of the
Transaction and no proceedings shall have been taken or threatened
under the merger provisions of Part VII or under Section 45 of the
Competition Act in respect of the Transaction;
(c) the Transaction shall have been approved or deemed to be approved
pursuant to the Investment Canada Act;
(d) the waiting period (and any extension thereof) applicable to the
consummation of the Transaction under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (United States), as amended, and any other
material waiting period under applicable foreign laws (if any) shall
have expired or been terminated without the imposition of any
governmental request or order requiring the sale or disposition or
holding separate (through a trust or otherwise) of a material portion
of the assets or businesses of UPR or Norcen;
<PAGE>
- 2 -
(e) all other requisite regulatory approvals and consents (including,
without limitation, those of any stock exchanges or other securities or
regulatory authorities) shall have been obtained on terms and
conditions satisfactory to the Offeror, acting reasonably, and all
applicable statutory or regulatory waiting periods shall have expired
or been terminated;
(f) (i) no act, action, suit, proceeding, objection or opposition shall
have been threatened or taken before or by any domestic or foreign
court or tribunal or governmental agency or other regulatory authority
or administrative agency or commission by any elected or appointed
public official or by any private person in Canada or elsewhere,
whether or not having the force of law, and (ii) no law, regulation or
policy (including applicable tax laws and regulations in those
jurisdictions in which Norcen or any of its subsidiaries carries on
business) shall have been proposed, enacted, promulgated, amended or
applied, which in either case, in the judgment of the Offeror acting
reasonably:
(A) has the effect or may have the effect to cease trade, enjoin,
prohibit or impose material limitations, damages or conditions
on the purchase by, or the sale to, the Offeror of the Norcen
Shares or the right of the Offeror to own or exercise full
rights of ownership of the Norcen Shares;
(B) has had, or if the Offer was consummated would result in, a
Material Adverse Change or, in the case of (ii) above, would
have a material adverse effect on the Offeror;
(C) has a material adverse effect on the completion of any
compulsory acquisition or any amalgamation, statutory
arrangement or other transaction involving the Offeror and/or
an affiliate of the Offeror and Norcen and/or the holders of
Norcen Shares for the purposes of Norcen becoming, directly or
indirectly, a wholly-owned subsidiary of the Offeror or
affecting an amalgamation or merger of Norcen's business and
assets with or into the Offeror and/or an affiliate of the
Offeror (a "Subsequent Acquisition Transaction");
(g) there shall not exist any prohibition at law against the Offeror making
the Offer or taking up and paying for all of the Norcen Shares under
the Offer or completing any compulsory acquisition or Subsequent
Acquisition Transaction in respect of any Norcen Shares not acquired
under the Offer;
(h) the Offeror shall have determined in its sole judgment acting
reasonably that Norcen has not taken or proposed to take any action
that would be a Material Adverse Change; and
(i) in the sole judgment of the Offeror, acting reasonably, (i) Norcen
shall not have breached, or failed to comply with, in any material
respect, any of its covenants or other obligations under the Agreement,
and (ii) all representations and warranties of Norcen contained in the
Agreement shall have been true and correct in all material respects as
of the date of the Agreement and shall not have ceased to be true and
correct in any material respect thereafter; provided that any
misrepresentation, breach and non-performance would have, or would be
reasonably likely to have, a material adverse effect on the Offeror and
provided further that
<PAGE>
- 3 -
Norcen has been given notice of and 3 days to cure any such
misrepresentation, breach or non-performance.
<PAGE>
SCHEDULE B
FORM OF PRE-TENDER AGREEMENT FOR CONTROLLING SHAREHOLDER
--------------------------------------------------------
Union Pacific Resources Group Inc.
Union Pacific Resources Inc.
January 25, 1998
Noranda Inc.
Suite 4100, BCE Place
181 Bay Street
Toronto, Ontario M5J 2T3
Attention: David W. Kerr
President and Chief Executive Officer
Dear Sir:
Re: Offer by Union Pacific Resources Inc. ("UPRI") to Purchase all of
the Norcen Shares
Reference is made to the Pre-Acquisition Agreement dated January 25,
1998 (the "Pre- Acquisition Agreement") between Union Pacific Resources Group
Inc., UPRI and Norcen pursuant to which UPRI has agreed to make an offer to
purchase all of the issued and outstanding Norcen Shares. All capitalized terms
referred to herein shall have the meanings attributed thereto in the Pre-
Acquisition Agreement.
We understand that you (the "Controlling Shareholder") beneficially
own, directly or indirectly, or exercise control or direction over, the number
of Norcen Shares set forth in your acceptance at the end of this letter
agreement. Any references in this letter agreement to Norcen Shares owned by the
Controlling Shareholder shall mean such number of Norcen Shares and, where the
context requires, shall include all of the shares of a holding company whose
only asset is the Norcen Shares and which has no liabilities, which shares may,
pursuant to the Offer, be tendered to UPRI.
1. Covenants of Controlling Shareholder
------------------------------------
By the acceptance of this letter agreement, the Controlling Shareholder
hereby agrees, subject to the terms of paragraph 5 hereof, from the date hereof
until the completion of the Offer:
(a) not to sell, assign, convey or otherwise dispose of any of the
Norcen Shares owned by such Controlling Shareholder and not to
permit any affiliate or subsidiary of such Controlling
Shareholder to sell, assign, convey or otherwise dispose of
any of the Norcen Shares owned by it, other than to a
wholly-owned holding company formed for the purpose of
tendering the shares of such holding company to the Offer;
<PAGE>
- 2 -
(b) unconditionally and irrevocably to accept and to cause any
affiliate or subsidiary of such Controlling Shareholder to
unconditionally and irrevocably accept the Offer made by UPRI
by depositing the Norcen Shares presently owned or hereafter
acquired by such Controlling Shareholder or affiliate or
subsidiary immediately following the mailing of the Offer and
in accordance with the terms and conditions of the Offer;
(c) not to exercise any statutory or other rights of withdrawal
with respect to any Norcen Shares owned by such Controlling
Shareholder or any affiliate or subsidiary of such Controlling
Shareholder once deposited pursuant to the Offer unless this
letter agreement is terminated prior to UPRI taking up the
Norcen Shares under the Offer; and
(d) not to exercise any shareholder rights or remedies available
at common law or pursuant to the Canada Business Corporations
Act or applicable securities legislation to delay, hinder,
upset or challenge the Offer.
2. Covenants of UPR and UPRI
-------------------------
(a) UPR shall cause UPRI and UPRI shall make the Offer in accordance with the
terms and conditions of the Pre-Acquisition Agreement and shall comply with the
provisions of Article 2 thereof in respect of the Offer. UPR and UPRI shall not
agree to amend Article 2 of the Pre- Acquisition Agreement without the consent
of the Controlling Shareholder.
(b) UPR shall cause and UPRI shall, subject to the satisfaction or waiver of the
conditions set forth in the Offer, take up and pay for all of the Norcen Shares
owned by the Controlling Shareholder or any affiliate or subsidiary of the
Controlling Shareholder deposited pursuant to the Offer, all in accordance with
the terms and conditions of the Offer and the provisions of the Pre-Acquisition
Agreement.
3. Representations
---------------
The Controlling Shareholder hereby represents and warrants to UPRI as
follows:
(a) the Norcen Shares are beneficially owned by such Controlling
Shareholder with valid and marketable title thereto, free and
clear of any and all liens, charges, security interests,
adverse claims, encumbrances and demands of any nature or kind
whatsoever;
(b) no person, firm or corporation has any agreement or option, or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option, for
the purchase, acquisition or transfer of any of the Norcen
Shares or any interest therein or right thereto, except
pursuant to this letter agreement;
(c) the Controlling Shareholder is a valid and subsisting
corporation with all necessary corporate power and authority
to execute and deliver this letter agreement and to perform
its obligations hereunder; and
<PAGE>
- 3 -
(d) this letter agreement has been duly executed and delivered by
the Controlling Shareholder and constitutes a valid and
binding obligation of the Controlling Shareholder, enforceable
in accordance with its terms.
4. Expenses
--------
UPRI and the Controlling Shareholder agree to pay their own respective
expenses incurred in connection with this letter agreement. Each of the parties
hereto agrees to indemnify the other against any claim for a finder's fee or
other compensation validly made by any broker which has an agreement with such
indemnifying party for the payment of such fee or compensation. This Section 4
shall survive the termination of this letter agreement pursuant to Section 5.
5. Termination
-----------
It is understood and agreed that the respective rights and obligations
hereunder of UPRI and the Controlling Shareholder shall cease and this letter
agreement shall terminate in the event that the Pre-Acquisition Agreement is
terminated pursuant to Article 11 thereof other than pursuant to Section 11.1(f)
or 11.1(h) thereof.
In the event of such termination of this letter agreement the
Controlling Shareholder may withdraw all of the Norcen Shares deposited in
accordance with the terms and conditions of the Offer, this letter agreement
shall forthwith be of no further force and effect and there shall be no
liability on the part of either the Controlling Shareholder or UPRI, except to
the extent that either such party is in default of its obligations herein
contained.
6. No Solicitation
---------------
(a) The Controlling Shareholder and its affiliates and
subsidiaries together with their respective directors,
officers, employees, agents, financial advisors, counsel and
other representatives shall immediately cease and cause to be
terminated all existing discussions and negotiations, if any,
with any parties conducted before the date of this letter
agreement with respect to any Take-over Proposal.
(b) Neither the Controlling Shareholder nor any of its affiliates
and subsidiaries, or any of their respective directors,
officers, employees, agents, financial advisors, counsel or
other representatives shall, directly or indirectly, (a)
solicit, initiate or knowingly encourage the initiation or
continuation of any inquiries, discussions, negotiations,
proposals or offers from any corporation, person or other
entity or group (other than UPR and its subsidiaries and their
respective directors, officers, employees, agents, financial
advisors, counsel or other representatives) in respect of any
matter or thing which is inconsistent with the successful
completion of the Offer and the merger of UPRI and Norcen,
including any Take-over Proposal or (b) provide any
confidential information to, participate in any discussions or
negotiations relating to any Takeover Proposal with, or
otherwise cooperate with or assist or participate in any
effort to consider, review or initiate a Take-over Proposal
by, any corporation, person or other entity or group.
<PAGE>
- 4 -
7. Amendment
---------
Except as expressly set forth herein, this letter agreement constitutes
the whole of the agreement between the parties and may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
8. Assignment
----------
No party to this letter agreement may assign any of its rights or
obligations under this letter agreement without the prior written consent of the
other party.
9. Disclosure
----------
Prior to first public disclosure of the existence and terms and
conditions of this letter, none of the parties hereto shall disclose the
existence of this letter agreement, or any details hereof, to any person other
than Norcen, its directors and officers, without the prior written consent of
the other parties hereto, except to the extent required by law. The existence
and terms and conditions of this letter agreement may be disclosed by UPRI and
Norcen in the press release issued in connection with the execution of the
Pre-Acquisition Agreement and the Offer Documents and the Directors Circular
prepared by Norcen.
10. Enurement
---------
This letter agreement will be binding upon and enure to the benefit of
UPRI, the Controlling Shareholder and their respective executors,
administrators, successors and permitted assigns.
11. Applicable Law
--------------
This letter agreement shall be governed and construed in accordance
with the laws of the Province of Alberta and the federal laws of Canada
applicable therein and each of the parties hereto irrevocably attorns to the
jurisdiction of the courts of the Province of Alberta.
<PAGE>
- 5 -
12. Counterparts
------------
This letter agreement may be signed in counterparts which together
shall be deemed to constitute one valid and binding agreement and delivery of
such counterparts may be effected by means of telecopier.
Yours truly,
UNION PACIFIC RESOURCES GROUP
INC.
Per:
-------------------------------
Per:
-------------------------------
UNION PACIFIC RESOURCES INC.
Per:
-------------------------------
Per:
-------------------------------
Acceptance
----------
The foregoing is hereby accepted as of and with effect from the ___ day
of January, 1998 and the undersigned hereby represents that the undersigned
beneficially owns, directly or indirectly, or exercises control or direction
over ______________ Norcen Shares.
Noranda Inc.
Per:
--------------------------------------------
Name: David W. Kerr
Title: President and Chief Executive Officer
<PAGE>
SCHEDULE C
FORM OF NORCEN PRESS RELEASE
----------------------------
<PAGE>
SCHEDULE D
FORM OF UPR PRESS RELEASE
-------------------------
<PAGE>
SCHEDULE E
CONDITIONS IN FAVOUR OF NORCEN
------------------------------
The capitalized terms used in this Schedule F have the meanings set
forth in the attached Pre-Acquisition Agreement dated January, 1998 (the
"Agreement") between UPR, UPRI and Norcen, except that the term "Offeror" shall
be deemed to refer to UPRI.
Notwithstanding any other provision of the Agreement, the Board of
Directors of Norcen reserves the right to withdraw, modify or amend its
recommendation with respect to the Offer unless all of the following conditions
are satisfied or waived by Norcen prior to the Expiry Time:
(a) all requisite regulatory approvals and consents (including,
without limitation, those of any stock exchanges or other
securities or regulatory authorities) shall have been obtained
and all applicable statutory or regulatory waiting periods
shall have expired or been terminated and no objection or
opposition shall have been filed, initiated or made during any
applicable statutory or regulatory period; and
(b) (i) no order shall have been issued by any domestic
or foreign court or tribunal or governmental agency
or other regulatory authority or administrative
agency or commissions, and
(ii) no law shall have been enacted;
which has the effect or may have the effect of cease trading,
enjoining or prohibiting the purchase by, or the sale to, the
Offeror of the Norcen Shares.
<PAGE>
SCHEDULE F
LETTER FOR RECIPIENTS OF EVALUATION MATERIALS
---------------------------------------------
January o, 1998
o
Dear Sirs:
You are hereby formally requested pursuant to the Confidentiality
Agreement dated o, 1998 (the "Confidentiality Agreement") between you and Norcen
to comply with the terms and conditions of that agreement and to [describe
obligations in Confidentiality Agreement with respect to return and destruction
of confidential information].
NORCEN ENERGY RESOURCES
LIMITED
Per:
------------------------------
Name:
Title:
Per: ------------------------------
Name:
Title:
<PAGE>
SCHEDULE G
HOLDCO SHARE PURCHASE AGREEMENT
-------------------------------
BETWEEN o (the "Vendor") and Union Pacific Resources Inc. (the
"Offeror").
WHEREAS the Vendor is the beneficial and registered owner of all of the
issued and outstanding shares (the "Purchased Shares") of o ("Holdco");
AND WHEREAS Holdco is the beneficial and registered owner of o common
shares (the "Norcen Shares") of Norcen Energy Resources Limited ("Norcen");
AND WHEREAS the Vendor has agreed to sell or cause to be sold to the
Offeror and the Offeror has agreed to buy the Purchased Shares upon the terms
and conditions set out below.
NOW THEREFORE the parties agree to the terms set out below.
INTERPRETATION
- --------------
1.1 As used in this agreement, the masculine gender includes the feminine and
neuter genders, and vice versa, and the singular includes the plural, and vice
versa, where the context so requires.
1.2 Defined terms herein have the meaning ascribed to them in the
Pre-Acquisition Agreement dated January 25, 1998 among Union Pacific Resources
Group Inc., Union Pacific Resources Inc. and Norcen (the "Pre-Acquisition
Agreement") unless otherwise defined herein.
PURCHASE OF PURCHASED SHARES
- ----------------------------
2.1 The Vendor agrees to sell to the Offeror and the Offeror agrees to purchase
from the Vendor, the Purchased Shares.
2.2 The Purchase price to be paid by the Offeror for the Purchased Shares shall
be equal in aggregate to the price per share of Norcen offered under the Offer
multiplied the number of the Norcen Shares held by Holdco, such price to be paid
in accordance with the Offer.
2.3 The Vendor and the Offeror agree that at the time the Purchased Shares are
purchased, Holdco shall have no assets (other than the Norcen Shares) and no
liabilities.
REPRESENTATIONS AND COVENANTS
- -----------------------------
3.1 The Vendor represents and warrants to the Offeror that as of execution and
closing:
(a) Incorporation and Registration. Holdco is a corporation duly
incorporated and validly existing under the Alberta Business Corporations Act
and has all necessary corporate power, authority and capacity to own its
property and assets and to carry on its business as presently conducted and to
enter into this Agreement and to perform its obligations hereunder. Holdco was
<PAGE>
- 2 -
incorporated on or after January 1, 1998. The Vendor has duly executed and
delivered this Agreement and, upon due execution and delivery of this Agreement
by the Offeror, this Agreement shall be a valid and binding agreement,
enforceable against the Vendor in accordance with its terms, subject to the
usual bankruptcy exception and the availability of equitable remedies. Neither
the nature of its business nor the location or character of the property owned
by Holdco requires Holdco to be registered, licensed or otherwise qualified as
an extra-provincial or foreign corporation or to be in good standing in any
other jurisdiction.
(b) Capitalization. The authorized capital of Holdco consists o of
which o are issued and outstanding (the "Purchased Shares"). The Purchased
Shares are the only outstanding securities of Holdco. All of the Purchased
Shares have been duly and validly issued and are outstanding as fully paid and
non-assessable shares of Holdco. No options, warrants or other rights to
purchase shares or other securities of Holdco and no securities or obligations
convertible into or exchangeable for shares or other securities of Holdco have
been authorized or agreed to be issued or are outstanding.
(c) Right to Sell. The Vendor is the sole registered and beneficial
owner of the Purchased Shares. The Vendor has the exclusive right to dispose of
the Purchased Shares owned by it as provided in this Agreement and the execution
of this Agreement and the disposition of the Purchased Shares will not violate,
contravene, breach or offend against or result in any default under any
indenture, mortgage, lease, agreement, obligation, instrument, charter or by-law
provision, statute, regulation, order, judgment, decree, license, permit or law
to which the Vendor or Holdco is a party or subject or by which the Vendor or
Holdco is bound or affected. The Vendor will deliver to the Offeror on closing
good and valid title to the Purchased Shares to be sold by the Vendor hereunder
free and clear of all liens. The Purchased Shares are not subject to any
shareholders agreement.
(d) Restricted Activity. Holdco was incorporated for the purpose of
acquiring and holding the Norcen Shares and since incorporation its sole
business activity has been the ownership of the Norcen Shares. Holdco has no
liabilities (whether accrued, absolute, potential, contingent or otherwise) and
no assets other than the Norcen Shares.
(e) No Joint Venture Interests, etc. Holdco is not a partner,
co-tenant, joint venturer or otherwise a participant in any partnership, joint
venture, co-tenancy or other similar jointly owned business.
(f) Agreements. Holdco is not a party to nor bound or affected by any
agreements, commitments or understandings of any nature whatsoever, written or
oral except for this Agreement and the Pre-Acquisition Agreement. Holdco is not
a party to nor bound by any agreement of guarantee, indemnification, assumption
or endorsement or any other like commitment of the obligations, liabilities
(contingent or otherwise) or indebtedness of any other person, firm or
corporation.
(g) Tax Matters. (i) Holdco has duly and timely filed its tax returns
with the appropriate taxing or other governmental authority or agency or if not
timely filed has paid any penalties imposed as a result thereof and has duly,
completely and correctly reported all income and all other
<PAGE>
- 3 -
amounts and information required to be reported thereon; (ii) Holdco has duly
and timely paid all taxes, including all interest and penalties relating
thereto, that are due and payable by it and there are no taxes that are not yet
due and payable and that relate to periods ending on or prior to the closing;
(iii) Holdco has not requested, nor entered into any agreement or other
arrangement or executed any waiver providing for, any extension of time within
which: (w) to file any tax return covering any taxes for which Holdco is or may
be liable, (x) to file any elections, designations or similar things relating to
taxes for which Holdco is or may be liable, (y) Holdco is required to pay or
remit any taxes or amounts on account of taxes, or (z) any taxing or other
governmental authority or agency may assess or collect taxes for which Holdco is
or may be liable; (iv) there are no actions, suits, proceedings, investigations,
audits or claims now pending or, after due inquiry, threatened, against Holdco
in respect of any taxes and there are no matters under discussion, audit or
appeal with any taxing or other governmental authority or agency relating to
taxes; (v) Holdco has duly and timely withheld from any amount paid or credited
by it to or for the account or benefit of any person, including, without
limitation, any of its employees, officers and directors and any non-resident
person, the amount of all taxes and other deductions, required by any applicable
law, rule or regulation to be withheld from any such amount and has duly and
timely remitted the same to the appropriate taxing or other governmental
authority or agency; (vi) the Norcen Shares are held by Holdco as capital
property for purposes of the Income Tax Act (Canada); (vii) Holdco is not a
non-resident of Canada or a non-resident owned investment corporation for the
purposes of the Income Tax Act (Canada); (viii) the Purchased Shares are
"eligible property" within the meaning of subsection 85(1.1) of the Income Tax
Act (Canada); and (ix) the Vendor is not a non-resident of Canada for the
purposes of the Income Tax Act (Canada.
(h) Litigation. There are no suits, actions, litigation, investigation,
claim, complaint, grievance or proceeding, including appeals and applications
for review, in progress, pending or threatened against or relating to Holdco or
affecting its assets before any court, governmental department, commission,
board, bureau, agency or arbitration panel.
(i) Compliance. Holdco has conducted its business in material
compliance with all applicable law, rules and regulations of any governmental,
administrative or regulatory authority, including any supranational authority,
judgments, orders, rulings or awards of any court arbitrator or any
governmental, administrative or regulatory authority.
(j) Consents. No consent, waiver, approval, authorization, exemption,
registration, license or declaration of or by, or filing with, or notification
to any governmental, administrative or regulatory authority is required to be
made or obtained by Holdco or the Vendor in connection with (i) the execution,
delivery or enforcement of this Agreement or (ii) the consummation of any
transactions provided for herein; except, in either case, those consents or
approvals listed in the Pre- Acquisition Agreement.
(k) Voting. The Vendor has not previously granted or agreed to grant
any proxy in respect of the Purchased Shares or entered into any voting trust,
vote pooling or other agreement with respect to the right to vote, call meetings
of shareholders or give consents or approvals of any kind as to the Purchased
Shares.
<PAGE>
- 4 -
(l) Articles and By-laws. The Vendor has made available to the Offeror,
the articles and by-laws of Holdco, including any and all amendments thereto and
such articles and by-laws as so amended are in full force and effect and no
amendments are being made to the same.
(m) Books and Records. The Vendor has made available to the Offeror,
all books and records of Holdco, including the minute books. Such books and
records fairly and correctly set out and disclose in all material respects the
financial position of Holdco and all financial transactions relating to Holdco
have been accurately recorded in such books and records. The minute books
include complete and accurate minutes of all meetings of the directors or
shareholders of Holdco, held to date or resolutions passed by the directors or
shareholders on consent, since the date of its incorporation. The share
certificate book, register of shareholders, register of transfers and register
of directors of Holdco are complete and accurate.
(n) Full Disclosure. None of the foregoing representations and
statements of fact contains any untrue statement of material fact or omits to
state any material fact necessary to make any such statement or representation
not misleading to a prospective purchaser of the Purchased Shares seeking full
information as to Holdco, its respective properties, businesses and affairs.
CLOSING
- -------
4.1 The closing of the purchase of the Purchased Shares shall take place
concurrently with the execution hereof at the offices of o prior to the take-up
and payment by the Offeror of Shares tendered to the Offer (the "Closing Date").
For that purpose, the Offeror agrees to give prior written notice to the Vendor
of its intention to take-up and pay for the Norcen Shares tendered to the
Offeror. Upon closing the Vendor shall deliver to the Offeror the certificates
representing the Purchased Shares, duly endorsed for transfer in blank by the
registered holder thereof, all of the share certificate books, minute books,
corporate seals and other corporate and business books and records of Holdco and
all files and materials respecting the assets and liabilities thereof,
resignations and releases of each director and officer of Holdco, a resolution
approving the transfer of the Purchased Shares to the Offeror and the share
certificates representing the Norcen Shares in the name of Holdco.
4.2 The representations and warranties made by the Vendor herein shall survive
for a period of three years from the date of purchase of the Purchased Shares by
the Offeror; provided however, that any representations and warranties which
prove to be incorrect or untrue with respect to tax matters shall survive as to
the such tax matters until the last applicable limitation period under
applicable tax laws (or, in the event of a reassessment, the settlement or
resolution of all matters relating thereto). No investigations made by or on
behalf of the Offeror or any of its authorized agents at any time shall have the
effect of waiving, diminishing the scope or otherwise affecting any
representation, warranty or covenant made by the Vendor herein or pursuant
hereto.
INDEMNITY
- ---------
5.1 The Vendor agrees to indemnify and save harmless each of the Offeror and its
directors, employees, officers and affiliates, on an after-tax basis, from and
against all liabilities, claims, losses, costs, damages, causes of action and
expenses (including reasonable counsel's fees and expenses) in any way caused
by, or arising directly or indirectly from, or in consequence of:
<PAGE>
- 5 -
(a) any representation or warranty in this Agreement being incorrect or
misrepresentative in any respect;
(b) the non-fulfillment of any covenant or agreement by the Vendor of
Holdco under this Agreement;
(c) any liabilities, duties or obligations of Holdco arising, directly
or indirectly, as a result of or in connection with transactions or events which
occurred prior to the closing of the purchase and sale of the Purchased Shares
hereunder, including, without limitation, (i) all debts, obligations,
liabilities, leases, contracts, commitments or engagements whatsoever, and (ii)
all liabilities in respect of income, capital, and other taxes and governmental
charges and assessments; and
(d) any act, action, suit or proceeding which shall have been
threatened or taken before or by any domestic or foreign court or tribunal or
governmental agency or other regulatory authority or administrative agency or
commission by any elected or appointed public official or private person
(including, without limitation, any individual, corporation, firm, group or
other entity) in Canada or elsewhere based upon any failure or alleged failure
by the Vendor, Holdco or any of its affiliates to comply with applicable laws,
including but not limited to Canadian securities laws, at any time prior to the
date hereof, all regardless of any prior knowledge of or notice to the Offeror.
TAX RETURNS
- -----------
6.1 On or before the statutory due date, the Vendor shall be responsible for
preparing and filing, and the Offeror shall allow the Vendor to, on behalf of
and in the name of Holdco, prepare and file all tax returns, elections, filings,
forms or reports (the "Returns") of Holdco required by law to be filed for
Holdco's taxation year ending on or before the closing of the purchase and sale
of the Purchased Shares hereunder, and the Offeror shall cause Holdco to execute
the Returns; provided that prior to filing any Returns, the Vendor shall have
first supplied draft copies of the Returns to the Offeror for review and comment
and shall only file the Returns upon obtaining the prior consent of the Offeror
thereto.
MISCELLANEOUS
- -------------
7.1 The provisions hereof shall enure to the benefit of and be binding upon the
parties hereto and their permitted successors and assigns. This Agreement is to
be governed by the laws of Ontario and the laws of Canada applicable therein.
7.2 Each of the parties agrees that in the event of any breach, the aggrieved
party (or parties) shall be entitled to the remedy of specific performance of
such covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity, and the parties further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
7.3 This Agreement shall immediately terminate in the event of the termination
of the Agreement.
<PAGE>
- 6 -
IN WITNESS WHEREOF the parties have executed this agreement on the o
day of o, 1998.
[OFFEROR]
Per:
-------------------------------
Authorized Signing Officer
[THE VENDOR]
Per:
-------------------------------
Authorized Signing Officer
<PAGE>
UNION PACIFIC RESOURCES GROUP INC.
("Company")
Debt Securities
TERMS AGREEMENT
October 10, 1996
Union Pacific Resources Group Inc.
801 Cherry Street
Mail Station 3213
Fort Worth, TX 76102
Attention:
Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement"), the
following securities (the "Securities") on the following terms:
Title: 7 1/2% Debentures due October 15, 2026.
Principal Amount: $200,000,000.
Interest: 7 1/2% per annum, from October 15, 1996, payable semiannually on
April 15 and October 15 commencing April 15, 1997, to holders of record on the
preceding April 1 or October 1, as the case may be.
Maturity: October 15, 2026.
Optional Redemption: The Securities are not redeemable prior to maturity.
<PAGE>
2
Sinking Fund: None.
Delayed Delivery Contracts: None.
Purchase Price: 98.546% of principal amount plus accrued interest, if any,
from October 15, 1996.
Expected Reoffering Price: 99.421% of principal amount, subject to change
by the undersigned.
Closing: 9:00 A.M. on October 15, at the offices of Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, in same day
funds.
Names and Addresses of Representatives:
Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
CS First Boston Corporation
55 East 52nd Street
New York, NY 10055
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Petrie Parkman & Co.
475 17th Street, Suite 1100
Denver, CO 80202
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking at the offices of
Cravath, Swaine & Moore at least 24 hours prior to the Closing Date.
<PAGE>
3
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.
Very truly yours,
Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
by
SMITH BARNEY INC.
by /s/ Christopher C. Lynch
Name: Christopher C. Lynch
Title: Managing Director
<PAGE>
4
SCHEDULE A
Underwriter Principal Amount
----------- ----------------
Smith Barney Inc.............. $ 66,000,000
CS First Boston Corporation... 66,000,000
Goldman, Sachs & Co........... 66,000,000
Petrie Parkman & Co........... 2,000,000
------------
Total......................... $200,000,000
<PAGE>
5
To: Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
We accept the offer contained in your letter dated October 10, 1996,
relating to $200 million principal amount of our 7 1/2% Debentures due October
15, 2026. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
UNION PACIFIC RESOURCES GROUP INC.
by /s/ Morris B. Smith
Name:
Title:
<PAGE>
UNION PACIFIC RESOURCES GROUP INC.
("Company")
Debt Securities
TERMS AGREEMENT
October 10, 1996
Union Pacific Resources Group Inc.
801 Cherry Street
Mail Station 3213
Fort Worth, TX 76102
Attention:
Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement"), the
following securities (the "Securities") on the following terms:
Title: 7% Notes due October 15, 2006.
Principal Amount: $200,000,000.
Interest: 7% per annum, from October 15, 1996, payable semiannually on
April 15 and October 15 commencing April 15, 1997, to holders of record on the
preceding April 1 or October 1, as the case may be.
Maturity: October 15, 2006.
Optional Redemption: The Securities are not redeemable prior to maturity.
<PAGE>
2
Sinking Fund: None.
Delayed Delivery Contracts: None.
Purchase Price: 98.762% of principal amount plus accrued interest, if any,
from October 15, 1996.
Expected Reoffering Price: 99.412% of principal amount, subject to change
by the undersigned.
Closing: 9:00 A.M. on October 15, at the offices of Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, in same day
funds.
Names and Addresses of Representatives:
Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
CS First Boston Corporation
55 East 52nd Street
New York, NY 10055
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Petrie Parkman & Co.
475 17th Street, Suite 1100
Denver, CO 80202
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking at the offices of
Cravath, Swaine & Moore at least 24 hours prior to the Closing Date.
<PAGE>
3
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.
Very truly yours,
Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
by
SMITH BARNEY INC.
by /s/ Christopher C. Lynch
Name: Christopher C. Lynch
Title: Managing Director
<PAGE>
4
SCHEDULE A
Underwriter Principal Amount
----------- ----------------
Smith Barney Inc.............. $ 65,334,000
CS First Boston Corporation... 65,333,000
Goldman, Sachs & Co........... 65,333,000
Petrie Parkman & Co........... 4,000,000
------------
Total......................... $200,000,000
<PAGE>
5
To: Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
We accept the offer contained in your letter dated October 10, 1996,
relating to $200 million principal amount of our 7% Notes due October 15, 2006.
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
UNION PACIFIC RESOURCES GROUP INC.
by
/s/ Morris B. Smith
-----------------------------------
Name:
Title:
<PAGE>
UNION PACIFIC RESOURCES GROUP INC.
("Company")
Debt Securities
TERMS AGREEMENT
October 31, 1996
Union Pacific Resources Group Inc.
801 Cherry Street
Mail Station 3213
Fort Worth, TX 76102
Attention:
Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement"), the
following securities (the "Securities") on the following terms:
Title: 7.50% Debentures due November 1, 2096.
Principal Amount: $150,000,000.
Interest: 7.50% per annum, from November 7, 1996, payable semiannually on
May 1 and November 1 commencing May 1, 1997, to holders of record on the
preceding April 15 or October 15, as the case may be.
Maturity: November 1, 2096. Upon the occurrence of a Tax Event, as defined
in the Prospectus Supplement of even date herewith, the Company will have the
right to shorten the maturity of the Securities to the extent
<PAGE>
2
required so that the interest paid on the Securities will be deductible for
Federal income tax purposes.
Optional Redemption: The Securities are not redeemable prior to maturity.
Sinking Fund: None.
Delayed Delivery Contracts: None.
Purchase Price: 98.593% of principal amount plus accrued interest, if any,
from November 7, 1996.
Expected Reoffering Price: 99.718% of principal amount, subject to change
by the undersigned.
Closing: 10:00 A.M. on November 7, 1996, at the offices of Cravath, Swaine
& Moore, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, in same day
funds.
Names and Addresses of Representatives:
Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
CS First Boston Corporation
55 East 52nd Street
New York, NY 10055
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Petrie Parkman & Co.
475 17th Street, Suite 1100
Denver, CO 80202
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking at the offices of
Cravath, Swaine & Moore at least 24 hours prior to the Closing Date.
<PAGE>
3
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.
Very truly yours,
Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
by
SMITH BARNEY INC.
by /s/ Michael S. Hays
Name: Michael S. Hays
Title:
<PAGE>
4
SCHEDULE A
Underwriter Principal Amount
----------- ----------------
Smith Barney Inc.............. $ 49,500,000
CS First Boston Corporation... $ 49,500,000
Goldman, Sachs & Co........... $ 49,500,000
Petrie Parkman & Co........... $ 1,500,000
------------
Total......................... $150,000,000
<PAGE>
5
To: Smith Barney Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
Petrie Parkman & Co.
As Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
We accept the offer contained in your letter dated October 31, 1996,
relating to $150 million principal amount of our 7.50% Debentures due November
1, 2096. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333-2984) (the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
UNION PACIFIC RESOURCES GROUP INC.
by /s/ Morris B. Smith
Name:
Title:
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7 1/2% Debenture due October 15, 2026
Registered $200,000,000
No. R-1 CUSIP 907834AB1
UNION PACIFIC RESOURCES GROUP INC., a corporation duly organized and
existing under the laws of the State of Utah (herein called the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $200,000,000 at the office or agency
of the Company in the Borough of Manhattan, The City of New York, on October 15,
2026 in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on said principal sum semiannually on April 15 and October 15 of
each year, commencing April 15, 1997, at said office or
<PAGE>
2
agency, in like coin or currency, at the rate per annum specified in the title
hereof, from the April 15 or the October 15, as the case may be, next preceding
the date of this Debenture to which interest on the Debentures has been paid or
duly provided for (unless the date hereof is the date to which interest on the
Debentures has been paid or duly provided for, in which case from the date of
this Debenture), or, if no interest has been paid on the Debentures or duly
provided for, from October 15, 1996 until payment of said principal sum has been
made or duly provided for. Notwithstanding the foregoing, if the date hereof is
after the first day of any April or October and before the next succeeding April
15 or October 15, this Debenture shall bear interest from such April 15 or
October 15, as the case may be; provided, however, that if the Company shall
default in the payment of interest due on such April 15 or October 15, then this
Debenture shall bear interest from the next preceding April 15 or October 15 to
which interest on the Debentures has been paid or duly provided for, or, if no
interest has been paid on the Debentures or duly provided for, from October 15,
1996. The interest so payable, and punctually paid or duly provided for, on any
April 15 or October 15 will, except as provided in the Indenture dated as of
March 27, 1996 (herein called the "Indenture"), duly executed and delivered by
the Company and Texas Commerce Bank National Association, as Trustee (herein
called the "Trustee"), be paid to the Person in whose name this Debenture (or
one or more Predecessor Securities) is registered at the close of business on
the next preceding April 1 or October 1, as the case may be (herein called the
"Regular Record Date"), whether or not a Business Day, and may, at the option of
the Company, be paid by check mailed to the registered address of such Person.
Any such interest which is payable, but is not so punctually paid or duly
provided for, shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may be paid either to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and upon such notice
as may be required by such exchange, if such manner of payment shall be deemed
practical by the Trustee, all as more fully provided in the Indenture.
Notwithstanding the
<PAGE>
3
foregoing, in the case of interest payable at Stated Maturity, such interest
shall be paid to the same Person to whom the principal hereof is payable.
Texas Commerce Bank National Association will be the Paying Agent and the
Security Registrar with respect to the Debentures. The Company reserves the
right at any time to vary or terminate the appointment of any Paying Agent or
Security Registrar, to appoint additional or other Paying Agents and other
Security Registrars, which may include the Company, and to approve any change in
the office through which any Paying Agent or Security Registrar acts; provided
that there will at all times be a Paying Agent in The City of New York and there
will be no more than one Security Registrar for the Debentures.
This Debenture is one of the duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness (hereinafter called the "Securities")
of the Company, of the series hereinafter specified, all issued or to be issued
under and pursuant to the Indenture, to which Indenture and any other indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee and any agent of the Trustee, any Paying Agent, the Company and the
Holders of the Securities and the terms upon which the Securities are issued and
are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subject to different covenants and
Events of Default and may otherwise vary as provided or permitted in the
Indenture. This Debenture is one of the series of Securities of the Company
issued pursuant to the Indenture and designated as the 7 1/2% Debentures due
October 15, 2026 (herein called the "Debentures"), limited in aggregate
principal amount to $200,000,000.
The Debentures are not subject to redemption prior to maturity.
<PAGE>
4
If an Event of Default with respect to the Debentures shall occur and be
continuing, the principal of all of the Debentures may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee to enter into supplemental indentures to the Indenture
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders of the Securities of each series under the Indenture
with the consent of the Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of each series to be affected thereby
on behalf of the Holders of all Securities of such series. The Indenture also
permits the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults and their consequences with respect to such
series under the Indenture. Any such consent or waiver by the Holder of this
Debenture shall be conclusive and binding upon such Holder and upon all future
Holders of this Debenture and of any Debenture issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the place, rate and respective times and in the coin or currency
herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain
conditions therein set forth, including the deposit of certain trust funds in
trust, the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and the obligations under, the Securities of any
series and to have satisfied all the obligations (with certain exceptions) under
the Indenture relating to the Securities of such series.
<PAGE>
5
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Debentures may be
exchanged for a like aggregate principal amount of Debentures of other
authorized denominations at the office or agency of the Company in the Borough
of Manhattan, The City of New York, designated for such purpose and in the
manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Debenture at the
office or agency of the Company in the Borough of Manhattan, The City of New
York designated for such purpose, a new Debenture or Debentures of authorized
denominations for a like aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture.
No charge shall be made for any such transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Debenture is registered as the owner hereof
for all purposes, whether or not this Debenture is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless otherwise defined herein, all terms used in this Debenture which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Debenture shall be construed in accordance with and governed by the
laws of the State of New York.
<PAGE>
6
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture, this Debenture shall not be
entitled to any benefits under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP INC. has caused this
Debenture to be duly executed.
Dated: October 15, 1996 UNION PACIFIC RESOURCES GROUP INC.
by /s/ Morris B. Smith
------------------------------
[SEAL] Title: Vice President
Chief Financial Officer
Attest: /s/ Mark Jones
----------------------------
Title: Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee,
by /s/
--------------------------
Authorized Signatory
<PAGE>
7
---------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--...........Custodian.........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________:
PLEASE INSERT SOCIAL SECURITY OR :
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
:_________________________________________:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE:
________________________________________________________________________________
__________________________________________________ the within Debenture and all
rights thereunder, hereby irrevocably constituting and appointing ______________
________________________________________________________________________________
<PAGE>
8
attorney to transfer said Debenture on the books of the Company, with full power
of substitution in the premises.
Dated: _______________________
______________________________
Signature
(Signature must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any change
whatever.)
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7% Note due October 15, 2006
Registered $200,000,000
No. R-1 CUSIP 907834AA3
UNION PACIFIC RESOURCES GROUP INC., a corporation duly organized and
existing under the laws of the State of Utah (herein called the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $200,000,000 at the office or agency
of the Company in the Borough of Manhattan, The City of New York, on October 15,
2006 in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on said principal sum semiannually on April 15 and October 15 of
each year, commencing April 15, 1997, at said office or
<PAGE>
2
agency, in like coin or currency, at the rate per annum specified in the title
hereof, from the April 15 or the October 15, as the case may be, next preceding
the date of this Note to which interest on the Notes has been paid or duly
provided for (unless the date hereof is the date to which interest on the Notes
has been paid or duly provided for, in which case from the date of this Note),
or, if no interest has been paid on the Notes or duly provided for, from October
15, 1996 until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after the first day of any
April or October and before the next succeeding April 15 or October 15, this
Note shall bear interest from such April 15 or October 15, as the case may be;
provided, however, that if the Company shall default in the payment of interest
due on such April 15 or October 15, then this Note shall bear interest from the
next preceding April 15 or October 15 to which interest on the Notes has been
paid or duly provided for, or, if no interest has been paid on the Notes or duly
provided for, from October 15, 1996. The interest so payable, and punctually
paid or duly provided for, on any April 15 or October 15 will, except as
provided in the Indenture dated as of March 27, 1996 (herein called the
"Indenture"), duly executed and delivered by the Company and Texas Commerce Bank
National Association, as Trustee (herein called the "Trustee"), be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the next preceding April 1 or October 1,
as the case may be (herein called the "Regular Record Date"), whether or not a
Business Day, and may, at the option of the Company, be paid by check mailed to
the registered address of such Person. Any such interest which is payable, but
is not so punctually paid or duly provided for, shall forthwith cease to be
payable to the registered Holder on such Regular Record Date and may be paid
either to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed and upon such notice as may be required by such exchange, if such
manner of payment shall be deemed practical by the Trustee, all as more fully
provided in the Indenture. Notwithstanding the foregoing, in the case of
interest payable at Stated Maturity, such interest shall be
<PAGE>
3
paid to the same Person to whom the principal hereof is payable.
Texas Commerce Bank National Association will be the Paying Agent and the
Security Registrar with respect to the Notes. The Company reserves the right at
any time to vary or terminate the appointment of any Paying Agent or Security
Registrar, to appoint additional or other Paying Agents and other Security
Registrars, which may include the Company, and to approve any change in the
office through which any Paying Agent or Security Registrar acts; provided that
there will at all times be a Paying Agent in The City of New York and there will
be no more than one Security Registrar for the Notes.
This Note is one of the duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness (hereinafter called the "Securities") of the
Company, of the series hereinafter specified, all issued or to be issued under
and pursuant to the Indenture, to which Indenture and any other indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee and any agent of the Trustee, any Paying Agent, the Company and the
Holders of the Securities and the terms upon which the Securities are issued and
are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subject to different covenants and
Events of Default and may otherwise vary as provided or permitted in the
Indenture. This Note is one of the series of Securities of the Company issued
pursuant to the Indenture and designated as the 7% Notes due October 15, 2006
(herein called the "Notes"), limited in aggregate principal amount to
$200,000,000.
The Notes are not subject to redemption prior to maturity.
<PAGE>
4
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all of the Notes may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee to enter into supplemental indentures to the Indenture
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders of the Securities of each series under the Indenture
with the consent of the Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of each series to be affected thereby
on behalf of the Holders of all Securities of such series. The Indenture also
permits the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults and their consequences with respect to such
series under the Indenture. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, rate and respective times and in the coin or currency herein and in
the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain
conditions therein set forth, including the deposit of certain trust funds in
trust, the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and the obligations under, the Securities of any
series and to have satisfied all the obligations (with certain exceptions) under
the Indenture relating to the Securities of such series.
<PAGE>
5
The Notes are issuable in registered form without coupons in denominations
of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, designated for such purpose and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York designated for such purpose, a new Note or Notes of authorized
denominations for a like aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture.
No charge shall be made for any such transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Unless otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall be construed in accordance with and governed by the laws of
the State of New York.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture, this Note shall not be
entitled to any benefits under the Indenture, or be valid or obligatory for any
purpose.
<PAGE>
6
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP INC. has caused this Note
to be duly executed.
Dated: October 15, 1996 UNION PACIFIC RESOURCES GROUP INC.
by /s/ Morris B. Smith
[SEAL] Title: Vice President
Chief Financial Officer
Attest: /s/
Title: Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee,
by /s/
Authorized Signatory
<PAGE>
7
---------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--...........Custodian.........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE:
________________________________________________________________________________
__________________________________________________ the within Note and all
rights thereunder, hereby irrevocably constituting and appointing ______________
______________________________ attorney to transfer said
<PAGE>
8
Note on the books of the Company, with full power of substitution in the
premises.
Dated: _______________________
______________________________
Signature
(Signature must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any change
whatever.)
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7 1/2% Note due November 1, 2096
Registered $150,000,000
No. R-1 CUSIP 907834AC9
UNION PACIFIC RESOURCES GROUP INC., a corporation duly organized and
existing under the laws of the State of Utah (herein called the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $150,000,000 at the office or agency
of the Company in the Borough of Manhattan, The City of New York, on November 1,
2096 in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on said principal sum semiannually on May 1 and November 1 of
each year, commencing May 1, 1997, at said office or agency, in
<PAGE>
2
like coin or currency, at the rate per annum specified in the title hereof, from
the May 1 or the November 1, as the case may be, next preceding the date of this
Debenture to which interest on the Debentures has been paid or duly provided for
(unless the date hereof is the date to which interest on the Debentures has been
paid or duly provided for, in which case from the date of this Debenture), or,
if no interest has been paid on the Debentures or duly provided for, from
November 7, 1996 until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after the
15th day of any April or October and before the next succeeding May 1 or
November 1, this Debenture shall bear interest from such May 1 or November 1, as
the case may be; provided, however, that if the Company shall default in the
payment of interest due on such May 1 or November 1, then this Debenture shall
bear interest from the next preceding May 1 or November 1 to which interest on
the Debentures has been paid or duly provided for, or, if no interest has been
paid on the Debentures or duly provided for, from November 7, 1996. The interest
so payable, and punctually paid or duly provided for, on any May 1 or November 1
will, except as provided in the Indenture dated as of March 27, 1996 (herein
called the "Indenture"), duly executed and delivered by the Company and Texas
Commerce Bank National Association, as Trustee (herein called the "Trustee"), be
paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on the next preceding April
15 or October 15, as the case may be (herein called the "Regular Record Date"),
whether or not a Business Day, and may, at the option of the Company, be paid by
check mailed to the registered address of such Person. Any such interest which
is payable, but is not so punctually paid or duly provided for, shall forthwith
cease to be payable to the registered Holder on such Regular Record Date and may
be paid either to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Debentures not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed and upon such notice as may be required by
such exchange, if such manner of payment shall be deemed practical by the
Trustee, all as more fully provided in the Indenture. Notwithstanding the
foregoing, in the case of interest payable at Stated
<PAGE>
3
Maturity, such interest shall be paid to the same Person to whom the principal
hereof is payable.
Texas Commerce Bank National Association will be the Paying Agent and the
Security Registrar with respect to the Debentures. The Company reserves the
right at any time to vary or terminate the appointment of any Paying Agent or
Security Registrar, to appoint additional or other Paying Agents and other
Security Registrars, which may include the Company, and to approve any change in
the office through which any Paying Agent or Security Registrar acts; provided
that there will at all times be a Paying Agent in The City of New York and there
will be no more than one Security Registrar for the Debentures.
This Debenture is one of the duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness (hereinafter called the "Securities")
of the Company, of the series hereinafter specified, all issued or to be issued
under and pursuant to the Indenture, to which Indenture and any other indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee and any agent of the Trustee, any Paying Agent, the Company and the
Holders of the Securities and the terms upon which the Securities are issued and
are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subject to different covenants and
Events of Default and may otherwise vary as provided or permitted in the
Indenture. This Debenture is one of the series of Securities of the Company
issued pursuant to the Indenture and designated as the 7 1/2% Notes due November
1, 2096 (herein called the "Debentures"), limited in aggregate principal amount
to $150,000,000.
Upon occurrence of a Tax Event, as defined below, the Company will have the
right to shorten the maturity of the Debentures to the extent required, in the
opinion of a nationally recognized independent tax counsel, such that, after the
shortening of the maturity, interest paid on the
<PAGE>
4
Debentures will be deductible for Federal income tax purposes.
In the event that the Company elects to exercise its right to shorten the
maturity of the Debentures on the occurrence of a Tax Event, the Company will
mail a notice of shortened maturity to each Holder of Debentures by first-class
mail not more than 60 days after the occurrence of such Tax Event, stating the
new maturity date of the Debentures. Such notice shall be effective upon
mailing.
"Tax Event" means that the Company shall have received an opinion of a
nationally recognized independent tax counsel to the effect that on or after the
date of the issuance of the Debentures, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in
laws, or any regulations thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of intent to adopt
such procedures or regulations (an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official position or the
interpretation of an Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case, on or after the
date of the issuance of the Debenture, such change in tax law creates a more
than insubstantial risk that interest paid by the Company on the Debentures is
not, or will not be, deductible, in whole or in part, by the Company for
purposes of Federal income tax.
The Debentures are not subject to redemption prior to maturity.
If an Event of Default with respect to the Debentures shall occur and be
continuing, the principal of all of the Debentures may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee to enter into supplemental indentures to the Indenture
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders of the Securities of each series under the Indenture
with the
<PAGE>
5
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected thereby on
behalf of the Holders of all Securities of such series. The Indenture also
permits the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults and their consequences with respect to such
series under the Indenture. Any such consent or waiver by the Holder of this
Debenture shall be conclusive and binding upon such Holder and upon all future
Holders of this Debenture and of any Debenture issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the place, rate and respective times and in the coin or currency
herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain
conditions therein set forth, including the deposit of certain trust funds in
trust, the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and the obligations under, the Securities of any
series and to have satisfied all the obligations (with certain exceptions) under
the Indenture relating to the Securities of such series.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Debentures may be
exchanged for a like aggregate principal amount of Debentures of other
authorized denominations at the office or agency of the Company in the Borough
of Manhattan, The City of New York, designated for such purpose and in the
manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Debenture at the
office or agency of the Company in the Borough of Manhattan, The City of New
York designated for such purpose, a new Debenture or Debentures of
<PAGE>
6
authorized denominations for a like aggregate principal amount will be issued to
the transferee in exchange therefor, subject to the limitations provided in the
Indenture.
No charge shall be made for any such transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Debenture is registered as the owner hereof
for all purposes, whether or not this Debenture is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless otherwise defined herein, all terms used in this Debenture which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Debenture shall be construed in accordance with and governed by the
laws of the State of New York.
<PAGE>
7
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture, this Debenture shall not be
entitled to any benefits under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP INC. has caused this Note
to be duly executed.
Dated: November 7, 1996 UNION PACIFIC RESOURCES GROUP INC.
by _______________________________
[SEAL] Title:
Attest: _________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee,
by ________________________
Authorized Signatory
<PAGE>
8
---------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--...........Custodian.........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE:
________________________________________________________________________________
__________________________________________________ the within Debenture and all
rights thereunder, hereby irrevocably constituting and appointing ______________
<PAGE>
9
______________________________ attorney to transfer said Debenture on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________
______________________________
Signature
(Signature must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any change
whatever.)
<PAGE>
NORCEN ENERGY RESOURCES LIMITED
And
MONTREAL TRUST COMPANY OF CANADA
Trustee
Trust Indenture
Dated as of May 7, 1996
providing for the issue of
Debt Securities
in unlimited principal amount
Trust Indenture
May 7, 1996
Between
NORCEN ENERGY RESOURCES LIMITED, a corporation incorporated
under the laws of Canada, and having its registered office at
the City of Calgary in the Province of Alberta, Canada (the
"Corporation"),
OF THE FIRST PART
and
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada and duly authorized to carry on the
trust business in each province of Canada (the "Trustee"),
OF THE SECOND PART
Whereas, the Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided; and
<PAGE>
Whereas, all things necessary to make this Indenture a valid agreement in
accordance with its terms have been done;
Now Therefore This Indenture Witnesses:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto, as follows:
Article 1
Definitions and Other Provisions of General Application
1.01 Definitions
For all purposes of this Indenture and in the Securities, except as otherwise
expressly provided or unless the subject matter or context otherwise requires:
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04;
"Affiliate" of any body corporate means any other body corporate if,
but only if, one of them is the Subsidiary of the other or both are
Subsidiaries of the same body corporate or each of them is controlled
by the same Person. For the purposes of this Indenture, a body
corporate shall be deemed to be "controlled" by another Person or by
two or more bodies corporate if, but only if,
(a) voting securities of the first-mentioned body corporate
carrying more than 50 per cent of the votes for the election
of directors are held, other than by way of security only, by
or for the benefit of such other Person or by or for the
benefit of such other bodies corporate; and
(b) the votes carried by such securities are sufficient, if
exercised, to elect a majority of the board of directors of
the first-mentioned body corporate; and the terms
"controlling" and "control" have meanings correlative to the
foregoing;
"Associate" means any body corporate (i)of which voting securities
carrying more than 25% of the votes for the election of directors are
beneficially owned, directly or indirectly, by the Corporation or
(ii)which is
<PAGE>
accounted for in the financial statements of the Corporation on an
equity basis;
"Authenticating Agent" means, with respect to the Securities of any
series, any Person authorized by the Trustee to act on behalf of the
Trustee to authenticate the Securities of such series;
"Authorized Newspaper" means a newspaper (which, in the case of Canada,
will, if practicable, be The Globe & Mail's Report on Business, in the
case of The City of New York, will, if practicable, be The Wall Street
Journal (Eastern Edition), in the case of the United Kingdom, will, if
practicable, be The Financial Times (London Edition) and, in the case
of Luxembourg, will, if practicable, be The Luxembourg Wort), printed
in an official language of the country of publication, customarily
published at least once a day for at least five days in each calendar
week and of general circulation in Canada, The City of New York, the
United Kingdom or Luxembourg, as applicable. If it shall be
impractical, in the opinion of the Trustee, to make any publication of
any notice required hereby in an Authorized Newspaper, any publication
or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of
such notice;
"Business Day", when used with respect to any Place of Payment, means a
day other than a Saturday or a Sunday and other than a day on which
banking institutions in such Place of Payment are authorized or
obligated by law or regulation to close;
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934
(United States of America), as amended, or if at any time after the
execution and delivery of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939 (United States of America), as amended, then the
body performing such duties at such time;
"Corporate Trust Office" means the office of the Trustee at which its
corporate trust business, at any particular time, shall be principally
administered, which office at the date hereof is located at Suite 710,
530-8th Avenue S.W., Calgary, Alberta, Canada T2P 3S8o;
<PAGE>
"Corporation" means Norcen Energy Resources Limited until a successor
Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Corporation" shall mean such successor
Person;
"Corporation Order" or "Corporation Request" means a written order or
request of the Corporation, signed by any one of its Officers, holding
office at the time of signing, delivered to the Trustee;
"Corporation's Auditors" means an independent firm of chartered
accountants duly appointed as auditors of the Corporation;
"Counsel" means any barrister or solicitor or attorney or firm of
barristers or solicitors or attorneys who may be counsel for, or
(except in the case of an Opinion of Counsel delivered pursuant to
Section 12.04) an employee of, the Corporation or the Trustee and who
shall be reasonably acceptable to the Trustee;
"covenant defeasance" has the meaning specified in Section 12.03;
"Coupon" means any interest coupon appertaining to a Security;
"Defaulted Interest" has the meaning specified in Section 3.07;
"defeasance" has the meaning specified in Section 12.02;
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depository by the Corporation
pursuant to Section 3.01 until a successor Depository shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Depository" shall mean each Person who is then a Depository
hereunder; and if at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series
shall mean each Depository with respect to the Registered Global
Securities of such series;
"Director" means a director of the Corporation for the time being, and
reference without more to action by the Directors means action by the
Directors as a board or, whenever duly empowered, by the executive
committee of the board;
"Directors' Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Corporation
to have been
<PAGE>
duly adopted or consented to by the Directors and to be in full force
and effect on the date of such certification, delivered to the Trustee;
"Dollars" and "$" means lawful money of Canada and "U.S. Dollars" and
"U.S. $" means lawful money of the United States of America;
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of European Communities;
"Event of Default" has the meaning specified in Section 5.01;
"Foreign Currency" means a currency issued by the government of a
country other than Canada;
"Government Obligations" means securities which are (i)direct
obligations of the government which issued the currency in which the
Securities of a particular series are denominated for the payment of
which its full faith and credit is pledged or (ii)obligations of a
Person the payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933 (United States of
America), as amended) as custodian with respect to any such Government
Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as
provided 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 such Government
Obligation or the specific payment of principal of or interest on such
Government Obligation evidenced by such depository receipt;
"Holder" means (i)in the case of any Registered Security, the Person in
whose name such Registered Security is registered in the Security
Register and (ii)in the case of any Unregistered Security, the bearer
of such Unregistered Security, or any Coupon appertaining thereto, as
the case may be;
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of
particular series of Securities established as provided hereunder;
<PAGE>
"Interest", when used with respect to non-interest bearing Securities,
means interest payable after Maturity;
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security;
"Journal" has the meaning specified in Section 1.16;
"Judgment Conversion Date" has the meaning specified in Section 1.17;
"Judgment Currency" has the meaning specified in Section 1.17;
"Market Exchange Rate" has the meaning specified in Section 1.16;
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of such principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity thereof, by declaration of acceleration, call for
redemption or otherwise;
"Officer", when used with respect to the Corporation, means the
Chairman of the Board, the President, any Vice President, the
Treasurer, the Assistant Treasurer, the Secretary or any Assistant
Secretary of the Corporation;
"Officers' Certificate" means a certificate of the Corporation, signed
by any two Officers in their capacities as officers of the Corporation
at the time of signing and not in their personal capacities, delivered
to the Trustee;
"Opinion of Counsel" means a written opinion of Counsel;
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
"Outstanding", when used with respect to Securities, means, as of any
particular time, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
<PAGE>
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Corporation) in trust or set aside and segregated in trust by
the Corporation (if the Corporation shall act as its own
Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Securities which have been mutilated, lost, stolen or
destroyed and in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture; and
(d) Securities which have been defeased pursuant to
Section 12.02;
provided, however, that in determining whether the Holders of the
requisite principal amount of the securities of any or all series then
Outstanding have voted or have signed or given any request, demand,
authorization, direction, notice, consent, requisition, waiver or other
instrument or have taken any action or constitute a quorum at any
meeting of Holders hereunder, (a)the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding for
such purposes shall be the portion of the principal amount thereof that
could be declared to be due and payable upon the occurrence of an Event
of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of such time and (b)Securities
owned by the Corporation, or any other obligor upon the Securities, or
any Subsidiary or any Affiliate of the Corporation or of such other
obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, requisition, waiver or other instrument or action or on the
Holders present or represented at any meeting of Holders, 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 free from the control of the Corporation, any
Subsidiary or any Affiliate of the Corporation and that the pledgee is
not the Corporation or any other obligor upon the Securities or any
Subsidiary or any Affiliate of the Corporation or of such other
obligor;
<PAGE>
"Paying Agent" means any Person authorized by the Corporation to pay
the principal of (and premium, if any) or interest on any Securities on
behalf of the Corporation;
"Periodic Offering" means an offering of Securities of any series from
time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the
Stated Maturity or Stated Maturities thereof and the redemption
provisions, if any, with respect thereto are to be determined by the
Corporation or its agents upon the issuance of such Securities;
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof;
"Petroleum and Natural Gas Right" means any right, title or interest
entitling the owner thereof to explore for or produce crude oil,
natural gas, natural gas liquids and/or related products or to a
working interest or a royalty interest in crude oil, natural gas,
natural gas liquids and/or related products, including any petroleum
and/or natural gas licence, sub-licence, lease, sub-lease, royalty
agreement, farmout agreement, joint participation agreement, conveyance
or other instrument;
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of such series are payable as
determined by or pursuant to this Indenture;
"Purchase Money Mortgage" means any mortgage, charge, hypothec, pledge
or other security or encumbrance created upon any real or personal
property acquired by the Corporation after the date of this Indenture
(or previously acquired and substantially unimproved) to secure or
securing the whole or any part of the purchase price of such property
(or, in the case of previously acquired and substantially unimproved
property, the cost of the improvement thereof) or the repayment of
money borrowed to pay the whole or any part of such purchase price or
cost or any vendor's privilege or lien on such property securing all or
any part of such purchase price or cost, including title retention
agreements and leases in the nature of title retention agreements;
<PAGE>
"Redemption Date", when used with respect to any Security to be
redeemed, means the date specified for such redemption in accordance
with or pursuant to this Indenture;
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which such Security is to be redeemed in
accordance with or pursuant to this Indenture;
"Registered Global Security" means a Security that evidences all or
part of any series of Securities, is issued to the Depository for such
series, or its nominee, in accordance with Section 3.02 and bears the
legend prescribed in Section 3.02;
"Registered Security" means any Security registered on the Security
Register;
"Regular Record Date", for the interest payable on any Interest Payment
Date on the Registered Securities of any series, means the date
specified for such purpose in accordance with or pursuant to this
Indenture;
"Required Currency" has the meaning specified in Section 1.17;
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer, any trust officer or any
other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge
of and familiarity with the particular subject;
"Securities" has the meaning stated in the first recital of this
instrument and more particularly means any Securities authenticated and
delivered under this Indenture;
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05;
<PAGE>
"Shareholders' Equity" means, at any date, the aggregate of the Dollar
amount of the outstanding share capital of the Corporation, the amount,
without duplication, of any contributed surplus and retained earnings,
plus or minus any foreign exchange translation adjustment, all as set
forth in the most recent audited consolidated balance sheet of the
Corporation;
"Special Record Date", for the payment of any Defaulted Interest, means
a date fixed by the Trustee pursuant to Section 3.07;
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security and any Coupon appertaining thereto as the
fixed date on which the principal of such Security or such instalment
of principal or interest is due and payable;
"Subsidiary" means any body corporate of which voting securities
carrying more than 50% of the votes for the election of directors are
beneficially owned, directly or indirectly, by the Corporation or by
the Corporation and any other Subsidiary or by any other Subsidiary
provided that ownership of such shares confers the right to elect at
least a majority of the directors of such body corporate;
"Trustee" means Montreal Trust Company of Canada 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; and if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to the
Securities of such series;
"Unregistered Security" means any Security other than a Registered
Security;
"Vice President", when used with respect to the Corporation 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;"
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such
series, in accordance with accepted financial practice; all accounting
terms not otherwise defined herein have the meanings assigned to them
in accordance with Generally Accepted Accounting
<PAGE>
Principles, and, except as otherwise herein expressly provided, the
term "Generally Accepted Accounting Principles" with respect to any
computation required or permitted hereunder shall mean the generally
accepted accounting principles from time to time recommended by the
Canadian Institute of Chartered Accountants, or any successor
institute, as applied by the Corporation at the date of such
computation in the preparation of its consolidated financial
statements; the words "hereto", "herein", "hereof", "hereby" 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 and references to Articles and Sections are to Articles and
Sections of this Indenture; and words importing the singular number
only include the plural and vice versa, words importing any gender
include any other gender and words importing persons include firms and
corporations and any reference to any statute or other legislation
shall be deemed to be a reference to such legislation as now enacted or
as the same may from time to time be amended, re-enacted or replaced.
1.02 Compliance Certificates and Opinions
Upon any application or request by the Corporation to the Trustee to take any
action under any provision of this Indenture, the Corporation shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture 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 application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such application or request, no additional certificate or opinion
need be furnished. Every certificate (other than any Officers' Certificate
delivered pursuant to Section 9.03) or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read and understands such covenant or condition
and the definitions herein relating thereto;
(b) 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;
<PAGE>
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as he or
she believes necessary to enable him or her to make the
statement or express the opinion contained in such certificate
as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with
in accordance with the terms of the Indenture.
1.03 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 shall not be 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 with respect to other matters, and any such Person may
certify or give an opinion with respect to such matters in one or several
documents. Any certificate or opinion of an Officer 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 legal matters upon which his or her 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 stating that the information with
respect to such factual matters is in the possession of the Corporation, unless
such Counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such factual matters
are erroneous.
Any certificate or opinion of an Officer or Opinion of Counsel may be based,
insofar as it relates to any accounting matters, upon a certificate or opinion
of, or representations by, the Corporation's Auditors or an accountant or
another firm of accountants engaged by the Corporation, 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 such
accounting matters are erroneous. Any certificate or opinion of any independent
firm of chartered accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
1.04 Acts of Holders
<PAGE>
(1) Any request, demand, authorization, direction, notice, consent, waiver or
other action required or permitted by this Indenture to be given or taken by a
specified percentage in aggregate principal amount of the Holders of one or more
series then Outstanding may be embodied in and evidenced: (i)by one or more
instruments of substantially similar tenor signed by such specified percentage
of Holders in person or by agent duly appointed in writing, and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, if hereby
expressly required, to the Corporation; (ii)by the record of such specified
percentage of Holders voting in favour thereof at any meeting of such Holders
duly called and held; and (iii)by a combination of such instrument or
instruments and any such record of a meeting. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or voting at such meeting. Proof of the execution of any such
instrument or of a writing appointing any such agent and of the holding by any
Person of any of the Securities of any series shall be sufficient for any
purpose of this Indenture and, subject to Section 6.01, conclusive in favour of
the Trustee and the Corporation, if made in the manner set forth in this
Section.
(2) The fact and date of the execution by any such Person of any instrument or
writing may be proved by the certificate of any notary public or other officer
of any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instrument or writing acknowledged to him
or her the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
Person executing the same.
(3) The ownership of an Unregistered Security of any series, or of any Coupon
attached thereto at its issuance, and the identifying number of such Security
and the date of such ownership, may be proved by the production of such Security
or Coupon or by a certificate executed by any trust company, bank, banker or
recognized securities dealer, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with such trust company, bank, banker
or recognized securities dealer by the Person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered Securities
of one or more series specified therein. The ownership by the Person named in
any such certificate of any Unregistered Security specified therein shall be
presumed to continue unless at
<PAGE>
the time of any determination of such ownership and holding (i)another
certificate bearing a later date issued in respect of such Security shall be
produced, (ii)such Security shall be produced by some other person or (iii)such
Security shall have ceased to be Outstanding.
(4) Subject to Section 6.01, the fact and date of the execution of any such
instrument or writing and the ownership, principal amount and number(s) of any
Unregistered Securities may also be proved in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee for any series or in
any other manner which the Trustee may deem sufficient.
(5) In the case of Registered Securities, the ownership thereof shall be proved
by the Security Register.
(6) The Corporation may fix a record date for the purpose of determining the
identity of the Holders entitled to participate in any Act required or permitted
under this Indenture, which record date shall be not earlier than 10 days prior
to the first solicitation of the written instruments or vote required for such
Act. If such a record date is fixed, the Persons who were the Holders of the
Securities of the affected series at the close of business on such record date
(or their duly authorized proxies) shall be the only Persons entitled to execute
written instruments or to vote with respect to such Act, or to revoke any
written instrument or vote previously delivered or given, whether or not such
Persons shall continue to be Holders of the Securities of such series after such
record date. With regard to any action that may be given or taken hereunder only
by Holders of a requisite principal amount of Outstanding Securities of any
Series (or their duly appointed agents) and for which a record date is set
pursuant to this paragraph, the Corporation may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the
Corporation may, on one or more occasions at its option, extend such date to any
later date. Nothing in this paragraph shall prevent any Holder (or any duly
appointed agent thereof) from giving or taking, after any expiration date, any
action identical to, or, at any time, contrary to or different from, any action
given or taken, or purported to have been given or taken, hereunder by a Holder
on or prior to such date, in which event the Corporation may set a record date
in respect thereof pursuant to this paragraph. Notwithstanding the foregoing,
the Corporation shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any action to be given or taken by
Holders pursuant to Section 5.01 or 5.02.
<PAGE>
(7) Upon receipt by the Trustee of (a)a request by one or more Holders pursuant
to clause (d)of Section 5.01 or any provision referred to in clause (i) of
Section 5.01, or (b)a requisition in writing by one or more Holders pursuant to
Section 5.02, with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of such series entitled to
join in such request or requisition, which record date shall be the close of
business on the day the Trustee first receives such request or requisition. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to join in such
request or requisition, whether or not such Holders remain Holders after such
record date; provided that, unless such request or requisition shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 180th day after such record date, such
request or requisition shall automatically and without any action by any Person
be cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 180-day period, an additional request contrary to or
different from, or, after the expiration of such period, identical to, a request
or requisition that has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
(8) At any time prior to (but not after) the evidencing to the Trustee, as
provided in paragraph (1) of this Section, of any Act by the Holders of the
requisite percentage of the aggregate principal amount of the Securities of one
or more series, as the case may be, any Holder of a Security, the serial number
of which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such Act, may, by filing
written notice at the Corporate Trust Office and upon proof of ownership as
required or permitted by this Section, revoke any written instrument or vote
with respect to such Act in respect of such Security. Except as provided in the
preceding sentence, 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 Corporation in reliance thereon, whether or not notation of such action is
made upon such Security.
(9) Without limiting the foregoing, a Holder entitled hereunder to give or take
any action hereunder with regard to any particular Security may do so with
regard
<PAGE>
to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
1.05 Notices, Etc. to Trustee
Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document required or permitted by this Indenture to be made
upon, given or furnished to, or filed with, the Trustee by any Holder or by the
Corporation shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee (i)by delivery to Suite
710, 530 - 8th Avenue S.W., Calgary, Alberta, Canada T2P 3S8, (ii)by facsimile
to fax number (403)267-6598o or (iii)by mail by registered letter, postage
prepaid, to the Trustee at Suite 710, 530 - 8th Avenue S.W., Calgary, Alberta,
Canada T2P 3S8, Attention: Manager Corporate Trust and, subject as provided in
this Section 1.05, shall be deemed to have been given at the time of delivery or
facsimile transmission or on the third Business Day after mailing. Any delivery
made or facsimile sent on a day other than a Business Day, or after 3:00 p.m.
(Calgary time) on a Business Day, shall be deemed to be received on the next
following Business Day. In the case of disruption in postal services any notice
shall be sent by facsimile or delivered. The Trustee may from time to time
notify the Corporation of a change in address or facsimile number which
thereafter, until changed by like notice, shall be the address or facsimile
number of the Trustee for all purposes of this Indenture.
1.06 Notices, Etc. to Corporation
Any request, demand, authorization, direction, notice, consent, waiver, or Act
of Holders or other document required or permitted by this Indenture to be made
upon, given or furnished to, or filed with the Corporation under the provisions
hereof by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Corporation (i)by delivery to 715 - 5th Avenue S.W., Box 2595, Station "M",
Calgary, Alberta T2P 4V4 , Attention: Treasurer, (ii)by facsimile to fax number
(403)231-0292 or (iii)by mail by registered letter, postage prepaid, addressed
to the Corporation at 715 - 5th Avenue S.W., Box 2595, Station "M", Calgary,
Alberta T2P 4V4, Attention: Treasurer and, subject as provided in this
Section 1.06, shall be deemed to have been given at the time of delivery or
sending by facsimile or on the third Business Day after mailing. Any delivery
made or facsimile sent on a day other than a Business Day, or after 3:00 p.m.
(Calgary time) on a Business Day, shall be deemed to be received on the next
following Business Day. In the case of disruption in postal services any notice,
if mailed, shall not be deemed to have
<PAGE>
been given until it is actually delivered to the Corporation. The Corporation
may from time to time notify the Trustee of a change in address or facsimile
number which thereafter, until changed by like notice, shall be the address or
facsimile number of the Corporation for all purposes of this Indenture.
1.07 Notice to Holders; Waiver
Where this Indenture or any Security requires or permits notice by the
Corporation or by the Trustee to the Holders of any event, such notice shall be
sufficient (unless otherwise herein or in such Security expressly provided) if
(i)in the case of any Holders of Registered Securities of any series or any
Holders of Unregistered Securities of any series who shall have filed their
names and addresses with the Trustee (for purposes of receipt of notice), given
or served by being sent by electronic communication or by being deposited in the
mail, first-class, postage prepaid, addressed to such Holders at their addresses
or electronic communication numbers as they shall appear on the Security
Register or at the addresses so filed, respectively, and (ii)in the case of any
Holders of other Unregistered Securities, published at least once in an
Authorized Newspaper in Canada (if required) and in The City of New York (if
required), and the United Kingdom (if required) and Luxembourg (if required),
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
the Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to the other Holders. Where this
Indenture or any Security provides for or permits 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.
In case, by reason of the suspension or disruption of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to give any such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
1.08 Effect of Headings and Table of Contents
The headings of the Articles and Sections herein and the Table of Contents are
for convenience only and shall not affect the construction or interpretation
hereof.
1.09 Successors and Assigns
<PAGE>
All covenants and agreements in this Indenture by the Corporation shall bind its
successors and assigns, whether so expressed or not.
1.10 Separability Clause
In case any provision in this Indenture or in the Securities or Coupons shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions thereof shall not in any way be affected or impaired by
such invalidity, illegality or unenforceability.
1.11 Benefits of Indenture
Nothing in this Indenture, in the Securities or in the Coupons, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
1.12 Governing Law
This Indenture and each Security and Coupon shall be governed by and construed
in accordance with the laws of the State of New York and the federal laws of the
United States of America applicable thereto and shall be treated in all respects
as New York contracts, except as may be otherwise required by mandatory
provisions of law. Notwithstanding the preceding sentence of this Section, the
exercise, performance or discharge by the Trustee of any of its rights, powers,
duties or responsibilities hereunder shall be construed in accordance with the
laws of the Province of Alberta and the federal laws of Canada applicable
thereto.
1.13 Language Clause
Les parties aux presentes ont exige que la presente convention ainsi que tous
les documents et avis qui s'y rattachent et/ou qui en decouleront soient rediges
en langue anglaise. The parties hereto have required that this Indenture and all
documents and notices related thereto be drawn up in English.
1.14 Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated Maturity
of any Security or Coupon shall be a day when banking institutions in a Place of
Payment are authorized or obliged by law or regulation to close, then
(notwithstanding any other provision of this Indenture, of the Securities or of
the
<PAGE>
Coupons) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding day when banking institutions at such Place of Payment are not
authorized or obliged by law or regulation to close with the same force and
effect as though made on the Interest Payment Date or the Redemption Date, or at
the Stated Maturity, and no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be. Whenever any period of time would begin or end, any calculation is to be
made, or any other action to be taken hereunder shall be stated to be required
to be taken, on a day other than a Business Day, such period of time shall begin
or end, such calculation shall be made or such other action shall be taken on
the next succeeding Business Day and an extension of time shall be included for
the purposes of computation of interest thereon. Any payment made after 3:00
p.m. (Calgary time) on a Business Day shall be deemed to be made on the next
following Business Day.
1.15 Counterparts
This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
1.16 Securities in a Foreign Currency or in ECU
Unless otherwise specified in or pursuant to a Directors' Resolution, a
supplemental indenture or an Officers' Certificate delivered pursuant to
Section 3.01 with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of the Securities of one or more series
at the time Outstanding and, at such time, there are Outstanding Securities of
any such affected series which are denominated in a Foreign Currency (including
ECU), then the principal amount of the Securities of such series which shall be
deemed to be Outstanding for the purpose of taking such action shall be the
amount of Dollars which could be obtained for such principal amount at the
Market Exchange Rate on the applicable record date established pursuant to
Section 1.04 or, if no such record date shall have been established, on the date
that the taking of such action shall be authorized by Act of the Holders of the
Securities of all such affected series. For the purposes of this Section,
"Market Exchange Rate" shall mean the noon rate of exchange for the Foreign
Currency in Dollars quoted by the Bank of Canada; provided, however, that in the
case of ECU, Market Exchange Rate shall mean the rate of exchange determined by
the Council of European Communities (or any successor thereto) as published in
the Official Journal of the European Communities (such publication or any
successor publication, the
<PAGE>
"Journal"). If such Market Exchange Rate shall not be available for any reason
with respect to such Foreign Currency or ECU, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Bank of
Canada or, in the case of ECU, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECU,
rates of exchange from one or more major banks in Calgary, Canada or in the
country of issue of the Foreign Currency in question, which for the purposes of
ECU shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall also apply in connection with any other action taken by the
Holders pursuant to the terms of this Indenture, including without limitation
any action under Section 5.02.
All decisions and determinations of the Trustee regarding the Market Exchange
Rate or any alternative determination provided for in the preceding paragraph
shall be in its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Corporation and all Holders.
1.17 Judgment Currency
(1) The Corporation agrees, to the fullest extent that it may effectively do so
under applicable law, that if for the purpose of obtaining or enforcing judgment
against the Corporation in any court it is or becomes necessary to convert the
sum due in respect of the principal of (and premium, if any) or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the conversion shall be
made at the rate of exchange at which, in accordance with normal banking
procedures, the Trustee could purchase in Calgary, Canada the Required Currency
with the Judgment Currency on the Business Day immediately preceding:
(a) the date of actual payment of the amount due, in the case
of any proceeding in the courts of the Province of Alberta or
in the courts of any other jurisdiction that will give effect
to such conversion being made on such date; or
(b) the date on which the final unappealable judgment is
given, in the case of any proceeding in the courts of any
other jurisdiction (the date as of which such conversion is
made pursuant to this clause being hereinafter in this
Section 1.17 referred to as the "Judgment Conversion Date").
(2) If, in the case of any proceeding in the court of any jurisdiction referred
to
<PAGE>
in clause (b) of Section 1.17(1), there is a change in the rate of exchange
prevailing between the Judgment Conversion Date and the date of actual payment
of the amount due, the Corporation shall pay such additional amount, if any, as
may be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of Dollars which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial order at the rate of
exchange prevailing on the Judgment Conversion Date.
(3) The Corporation also agrees, to the fullest extent that it may effectively
do so under applicable law, that its obligations under this Indenture and the
Securities of such series to make payments in the Required Currency (i)shall not
be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the effective receipt by the payee
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii)shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if
any, by which such effective receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii)shall not be affected by
judgment being obtained for any other sums due under this Indenture.
(4) The term "rate of exchange" in this Section 1.17 means the noon rate of
exchange for the Judgment Currency in Dollars quoted by the Bank of Canada for
the day in question.
1.18 Agent for Process
By its execution and delivery of this Indenture, the Corporation irrevocably
designates and appoints CT Corporation System, 1633 Broadway, New York, New York
10019, U.S.A. as the Corporation's authorized agent upon whom process may be
served in any action, suit or proceeding arising out of or relating to this
Indenture, the Securities and/or the Coupons, and agrees that service of process
upon said CT Corporation System, and written notice of such service to the
Corporation in the manner provided in Section 1.06, shall be deemed in every
respect effective service of process upon the Corporation in any such action,
suit or proceeding. The Corporation further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue the designation and appointment of
said CT Corporation System, or of any successor authorized agent of the
Corporation, in full force and effect so long as any of the Securities or
Coupons shall be outstanding.
<PAGE>
1.19 Exemptions from Individual Liability
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security or Coupon, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future shareholder,
employee, officer or director, as such, of the Corporation or of any successor,
either directly or through the Corporation 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 and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Article 2
Security Forms
2.01 Forms Generally
The Securities of each series and the Coupons, if any, to be attached thereto
shall be substantially in such form, not inconsistent with this Indenture, as
shall be established by or pursuant to one or more Directors' Resolutions (as
set forth in either a Directors' Resolution or, to the extent established
pursuant to a Directors' Resolution, an Officers' Certificate detailing such
establishment) 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 imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification and such legends or endorsements, not inconsistent with this
Indenture, as may be required to comply with any law or any rules or regulations
pursuant thereto, or with any rules of any securities exchange, or to conform to
general usage, all as may be determined by the Officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and the Coupons, if any, to be attached thereto shall
be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the Officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
2.02 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
<PAGE>
"This is one of the Securities of a series referred to in the
within-mentioned Indenture.
Montreal Trust Company of Canada,
as Trustee
By:__________________________________________
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with respect to
any series of the Securities, the Securities of each such series shall bear, in
addition to the form of the Trustee's certificate of authentication, an
alternate certificate of authentication which shall be in substantially the
following form:
"This is one of the Securities of a series referred to in the
within-mentioned Indenture.
Montreal Trust Company of Canada,
as Trustee
By:__________________________________________,
as Authenticating Agent
By:__________________________________________,
Authorized Officer"
Article 3
The Securities
3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series shall
rank pari passu with each other without discrimination, preference or priority
whatever may be the actual date of issue, and with all other unsecured and
unsubordinated indebtedness for borrowed money of the Corporation. There shall
be established in or pursuant to one or more Directors' Resolutions (and to the
extent established pursuant to a Directors' Resolution, in an Officers'
Certificate detailing such
<PAGE>
establishment) or in one or more indentures supplemental hereto, prior to the
original issuance of the Securities of any series:
(a) the designation of the securities of such series (which
shall distinguish the Securities of such series from the
securities of all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which 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 such
series pursuant to Section 3.04, 3.05, 3.06, 8.05 or 10.07 and
except for any Securities which, pursuant to Section 3.02, are
deemed never to have been authenticated and delivered
hereunder);
(c) if other than Dollars, the coin or currency in which the
Securities of such series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(d) the date or dates of issue of the Securities of such
series and the date or dates on which the principal of the
Securities of such series shall be payable and/or the method
by which such date or dates shall be determined;
(e) the rate or rates at which the Securities of such series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, in the case of Registered
Securities, the Regular Record Date for the interest payable
on any Interest Payment Date and/or the method by which such
rate or rates or date or dates shall be determined;
(f) any place or places other than the Corporate Trust Office
where the principal of (and premium, if any) and interest on
the Securities of such series shall be payable;
(g) the period or periods within which, the price or prices at
which and the terms and conditions upon which the Securities
of such series may be redeemed, in whole or in part, at the
option of the Corporation, pursuant to any sinking fund or
otherwise and/or
<PAGE>
the method by which such period or periods, price or prices
and terms and conditions shall be determined;
(h) the right or obligation, if any, of the Corporation, to
redeem, purchase or repay the Securities of such series
pursuant to any voluntary or mandatory redemption, sinking
fund or analogous provision and the period or periods within
which, the price or prices at which and the terms and
conditions upon which the Securities of such series shall be
so redeemed, purchased or repaid and/or the method by which
such period or periods, price or prices and terms and
conditions shall be determined;
(i) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or
$1,000 or $5,000 in the case of Unregistered Securities, the
denominations in which the Securities of such series shall be
issuable or the method by which such denominations shall be
determined;
(j) if other than the principal amount thereof, the portion of
the principal amount of the Securities of such series which
shall be payable upon declaration of acceleration of the
Maturity thereof or the method by which such portion shall be
determined;
(k) if other than the coin or currency in which the Securities
of such series are denominated, the coin or currency in which
payment of the principal of (and premium, if any) or interest
on the Securities of such series shall be payable or the
method by which such coin or currency shall be determined;
(l) if the principal of (and premium, if any) or interest on
the Securities of such series are to be payable, at the
election of the Corporation or a Holder thereof, in a coin or
currency other than that in which the Securities of such
series are denominated, the period or periods within which,
and the terms and conditions upon which, such election may be
made and/or the method by which such period or periods and
terms and conditions shall be determined;
(m) if the amount of payments of the principal of (and
premium, if any) and interest on the Securities of such series
may be determined with reference to an index, the manner in
which such amounts shall be determined;
<PAGE>
(n) whether the Securities of such series will be issuable as
Registered Securities (and if so, whether such Registered
Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in
Section 3.05, the terms upon which Unregistered Securities of
such series may be exchanged for Registered Securities of such
series and vice versa;
(o) whether and under what circumstances the Corporation will
pay additional amounts on the Securities of such series in
respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Corporation will have the
option to redeem such Securities rather than pay such
additional amounts;
(p) if the Securities of such series are to be issuable in
definitive form (whether upon original issuance 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 terms of such
certificates, documents or conditions;
(q) any trustees, Depositories, authenticating or paying
agents, transfer agents, registrars or other agents with
respect to the Securities of such series;
(r) any additional events of default or covenants with respect
to the Securities of such series or any Events of Default or
covenants herein specified which shall not be applicable to
the Securities of such series;
(s) the Person to whom any interest on a Security of any
series shall be payable, if other than the Person in whose
name that Security is registered at the close of business on
the Regular Record Date for such interest; and
(t) any other terms of such series.
All Securities of any one series and the Coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Directors' Resolution or Officers' Certificate referred to above or as may
otherwise
<PAGE>
be set forth in any indenture supplemental hereto referred to above.
All Securities of any series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Directors' Resolution, Officers' Certificate or
supplemental indenture.
3.02 Execution, Authentication and Delivery
The Securities shall be executed on behalf of the Corporation by any two of the
following Officers: its Chairman of the Board, its President, any of its Vice
Presidents, its Treasurer or its Assistant Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or Assistant Secretary. The
signature of any Officer on the Securities may be manual or facsimile. The seal
of the Corporation may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of such
seal or any such signature shall not affect the validity or enforceability of
any Security which has been duly authenticated and delivered by the Trustee. The
Coupons, if any, attached to the Securities of any series shall bear the
facsimile signature of the Treasurer or any Assistant Treasurer of the
Corporation. A facsimile signature upon a Security or a Coupon shall for all
purposes of this Indenture be deemed to be the Signature of the person whose
signature it purports to be.
In case any such Officer who shall have so executed any of the Securities or
Coupons, if any, shall cease to hold such office before the Security or Coupon
so executed (or the Security to which the Coupon so executed appertains) shall
be authenticated and delivered by the Trustee or disposed of by the Corporation
such Security or Coupon nevertheless may be authenticated and delivered or
disposed of and shall bind the Corporation as though the Person who signed such
Security or Coupon had not ceased to be such Officer; and any Security or Coupon
may be so executed on behalf of the Corporation by such Persons as, at the
actual date of execution of such Security or Coupon, shall be the proper
officers of the Corporation although at the date of the execution and delivery
of this Indenture any such Person was not such an officer.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series, having attached
thereto the Coupons, if any, appertaining thereto, executed by the Corporation
to the Trustee for authentication, together with a Corporation Order for the
authentication and delivery of such Securities and the other applicable
documents referred to below in this Section, and thereupon the Trustee shall
authenticate and deliver such Securities pursuant to such Corporation Order or
pursuant to procedures acceptable to the Trustee specified from time to time by
a Corporation Order. In authenticating the Securities of any series and
accepting the additional
<PAGE>
responsibilities under this Indenture in respect of the Securities of
such series, the Trustee shall be entitled to receive (but, in the case of
subparagraphs (b), (c) and (d) below, only at or before the time of the first
request of the Corporation to the Trustee to authenticate Securities of such
series) and, subject to Section 6.01, shall be fully protected in relying upon,
unless and until such documents shall have been superseded or revoked:
(a) a Corporation Order requesting such authentication and
setting forth delivery instructions if the Securities of such
series and the Coupons, if any, appertaining thereto are not
to be delivered to the Corporation provided that, with respect
to the Securities of any series which are subject to a
Periodic Offering: (i)the Trustee shall authenticate and
deliver the Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding
the aggregate principal amount established for such series,
pursuant to a Corporation Order or pursuant to procedures
acceptable to the Trustee specified from time to time by a
Corporation Order, (ii)if so provided in or pursuant to the
Directors' Resolution or supplemental indenture establishing
the Securities of such series, the maturity date, the original
issue date, the interest rate and any other terms of any or
all of the Securities of such series and the Coupons, if any,
appertaining thereto may be determined by a Corporation Order
or pursuant to such procedures and (iii)if so provided in such
procedures, such Corporation Order may authorize
authentication and delivery pursuant to electronic
instructions from the Corporation or its duly authorized
agent, which instructions shall be promptly confirmed in
writing;
(b) any Directors' Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Section 2.01 or
3.01 by or pursuant to which the form or forms and the terms
of the Securities of such series and the Coupons, if any,
appertaining thereto were established;
(c) an Officers' Certificate either setting forth the form or
forms and the terms of the Securities of such series and the
Coupons, if any, appertaining thereto or stating that such
form or forms and terms have been established pursuant to
Section 2.01 or 3.01 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably
request; and
<PAGE>
(d) at the option of the Corporation, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to
rely on an Opinion of Counsel, substantially to the effect
that:
(i) the form or forms of the Securities of such series
and the Coupons, if any, appertaining thereto have
been duly authorized and established in conformity
with the provisions of this Indenture;
(ii) in the case of an underwritten offering, the terms of
the Securities of such series have been duly
authorized and established in conformity with the
provisions of this Indenture; and in the case of an
offering which is not underwritten, certain terms of
the Securities of such series have been authorized
and established pursuant to a Directors' Resolution,
an Officers' Certificate or a supplemental indenture
in accordance with the provisions of this Indenture,
and when such other terms as are to be established
pursuant to a Corporation Order or procedures set
forth in a Corporation Order shall have been
established, all of the terms of the Securities of
such series will have been duly authorized and
established in conformity with the provisions of this
Indenture;
(iii) when the Securities of such series and the Coupons,
if any, appertaining thereto shall have been executed
by the Corporation and authenticated by the Trustee
in accordance with the provisions of this Indenture
and delivered to and duly paid for by the purchasers
thereof, such Securities will have been duly issued
under this Indenture and will be valid and legally
binding obligations of the Corporation enforceable in
accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights generally and to general principles
of equity (regardless of whether considered in a
proceeding in equity or at law), and will be entitled
to the benefits of this Indenture; and
(iv) no consent, approval, authorization, order,
registration or qualification of or with any
governmental agency or body having jurisdiction over
the Corporation is required for the
<PAGE>
execution and delivery of the Securities of such
series by the Corporation except such as have been
obtained, but no opinion need be expressed as to
provincial or state securities or Blue Sky laws.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of any series under this Section (other than Securities the form or
forms and terms of which shall have been established by supplemental indenture)
if the Trustee, being advised by Counsel, shall determine that such action may
not lawfully be taken or if the Trustee shall in good faith, by any one of its
Responsible Officers, determine that such action would expose the Trustee to
personal liability to the Holders of the Securities then Outstanding or would
affect the Trustee's rights, duties or immunities under the Securities of such
series or this Indenture in a manner which is not reasonably acceptable to the
Trustee. If the Corporation shall establish pursuant to Section 3.01 that the
Securities of any series are to be issued in the form of one or more Registered
Global Securities, then the Corporation shall execute and the Trustee shall, in
accordance with this Section and the Corporation Order with respect to such
series, authenticate and deliver one or more Registered Global Securities that
(i)shall be in an aggregate principal amount equal to the aggregate principal
amount specified in such Corporation Order, (ii)shall be registered in the name
of the Depository therefor or its nominee, (iii)shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions and
(iv)shall bear a legend substantially to the following effect: "Unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, this Security may not be transferred except as a whole by the Depository
to the nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor Depository."
Each Depository designated pursuant to Section 3.01 must, at the time of its
designation and at all times while it serves as Depository, be a clearing agency
registered under the Securities Exchange Act of 1934 (United States of America),
as amended, and any other applicable statute or regulation.
No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there shall appear on such Security a
certificate of authentication substantially in the form and executed as
hereinabove provided, 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. No
Coupon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose until the
<PAGE>
certificate of authentication on the Security to which such Coupon appertains
shall have been duly executed as hereinabove provided. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Corporation, and the Corporation shall deliver
such Security and any Coupons appertaining thereto to the Trustee for
cancellation as provided in Section 3.09, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
3.03 Denomination and Date of Securities
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as provided in Section 3.01
or, with respect to the Registered Securities of any series if not so
established, in denominations of $1,000 and any integral multiple thereof or,
with respect to the Unregistered Securities of any series, in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers executing the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities of
each series shall bear interest, if any, from the date, and such interest shall
be payable on the dates, established pursuant to Section 3.01.
3.04 Temporary Securities
Pending the preparation of definitive Securities of any series, the Corporation
may execute, and upon Corporation Order the Trustee shall authenticate and
deliver, temporary Securities for such series which are printed, lithographed,
typewritten or otherwise produced. Temporary Securities of any series shall be
issuable as Registered Securities, or as Unregistered Securities with or without
Coupons attached thereto, in any authorized denomination and substantially in
the forms of the definitive Securities of such series, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Corporation with the concurrence of the Trustee, as
evidenced by the execution and authentication thereof. Temporary Securities may
contain such references to any provisions of this Indenture as may be
appropriate. Every temporary Security of any series shall be executed by the
Corporation and authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unreasonable delay, the Corporation shall
execute and deliver to the
<PAGE>
Trustee for authentication definitive Securities of such series; and thereupon
temporary Registered Securities of such series may be surrendered in exchange
for definitive Registered Securities of such series without charge at each
office or agency to be maintained for such purpose in a Place of Payment of that
series, and temporary Unregistered Securities of such series may be surrendered
in exchange for definitive Unregistered Securities of such series, having
attached thereto appropriate Coupons, if any, without charge at any office or
agency to be maintained in a Place of Payment of that series. The Trustee shall
authenticate and deliver in exchange for temporary Securities of such series so
surrendered an equal aggregate principal amount of definitive Securities of such
series in authorized denominations. Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 3.01. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered Securities of
any series that may be established pursuant to Section 3.01 (including any
provision that Unregistered Securities of such series initially be issued in the
form of a single global Unregistered Security to be delivered to a Depository or
agency located outside the United States of America and the procedures pursuant
to which definitive Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
3.05 Registration, Transfer and Exchange
The Corporation shall keep, or cause to be kept, at the Corporate Trust Office,
or at any office or agency to be maintained by the Corporation in a Place of
Payment, for each series of Securities issuable as Registered Securities a
register (the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. The Security Register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times, any
Security Register not maintained by the Trustee shall be open for inspection by
the Trustee. Unless and until otherwise determined by the Corporation pursuant
to Section 3.01, the Security Register with respect to each series of Securities
issuable as Registered Securities shall be kept at the Corporate Trust Office
and, for this purpose, the Trustee shall be designated the "Security Registrar".
The holder of any Registered Security shall be entitled to inspect the Security
Register at anytime during normal business hours of the Trustee at the Corporate
Trust Office and to make extracts therefrom.
Upon surrender for registration of transfer of any Registered Security of any
series at any office or agency to be maintained for such purpose in a Place of
Payment for
<PAGE>
that series, the Corporation shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees one or more
new Registered Securities of the same series of like tenor and terms in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series (other
than a Registered Global Security, except as set forth below) may be exchanged
for one or more Registered Securities of such series of like tenor and terms in
authorized denominations for a like aggregate principal amount, upon surrender
of any such Registered Security to be exchanged at the office or agency to be
maintained for such purpose in a Place of Payment for that series and upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if the Securities of any series
are issued in both registered and unregistered form, except as otherwise
established for a particular series pursuant to Section 3.01, one or more
Unregistered Securities of such series may be exchanged for Registered
Securities of such series of like tenor and terms in authorized denominations
for a like aggregate principal amount, upon surrender of any such Unregistered
Security to be exchanged at the office or agency to be maintained for such
purpose in a Place of Payment for that series, with, in the case of Unregistered
Securities having Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Corporation
shall so require, of the charges hereinafter provided. At the option of the
Holder thereof, if Unregistered Securities of any series are issued in more than
one authorized denomination, except as otherwise established for a particular
series pursuant to Section 3.01, any such Unregistered Security may be exchanged
for one or more Unregistered Securities of such series of like tenor and terms
in authorized denominations for a like aggregate principal amount, upon
surrender of any such Unregistered Securities to be exchanged at the office or
agency to be maintained for such purpose in a Place of Payment for that series
with, in the case of Unregistered Securities having Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto appertaining, and
upon payment, if the Corporation shall so require, of the charges hereinafter
provided. Unless otherwise established for a particular series pursuant to
Section 3.01, Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever Securities of any series are so
surrendered for exchange, the Corporation shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All
<PAGE>
Securities and Coupons surrendered upon any exchange or transfer provided for in
this Indenture shall be promptly cancelled and disposed of by the Trustee, and
the Trustee shall deliver a certificate of disposition thereof to the
Corporation.
All Registered Securities of any series presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Corporation or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Corporation and the Trustee
duly executed by, the Holder or his or her attorney duly authorized in writing.
The Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities; but unless otherwise provided in the
Securities to be exchanged or transferred, no service charge shall be made for
any such transaction.
The Corporation shall not be required to (i)issue, exchange or register the
transfer of Securities of any series during a period of 15 Business Days next
preceding the first mailing or publication of notice of redemption of the
Securities of such series to be redeemed, (ii)exchange or register the transfer
of any Securities selected for redemption, in whole or in part, except the
unredeemed portion of any Security to be redeemed in part or (iii)exchange or
register the transfer of any Security if the Holder thereof has exercised any
right to require the Corporation to purchase such Security, in whole or in part,
except any portion thereof not required to be so purchased.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive registered form, a
Registered Global Security representing all or a portion of the Securities of
any series may not be transferred except as a whole by the Depository for such
Registered Global Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such
Registered Global Security or a nominee of such successor Depository. If at any
time a Depository for any Registered Securities of a series represented by one
or more Registered Global Securities shall notify the Corporation that it is
unwilling or unable to continue as Depository for such Registered Securities or
if at any time any such Depository shall no longer be eligible under
Section 3.02, the Corporation shall appoint a successor Depository with respect
to the Registered Securities held by such Depository. If a successor Depository
shall not be appointed by the Corporation within 90 days after the Corporation
receives such notice or becomes aware of such ineligibility, the Corporation
shall execute, and the Trustee upon receipt of a Corporation Order shall
authenticate and deliver, in exchange for such Registered Global Securities,
Registered Securities of such
<PAGE>
series in definitive form in authorized denominations for an aggregate principal
amount equal to the aggregate principal amount of the Registered Global
Securities held by such Depository.
If an Event of Default described in clause (a) or (b) of Section 5.01 shall
occur and be continuing for more than seven days with respect to any series of
the Securities, the Corporation shall execute and deliver to the Trustee,
together with a Corporation Order, and the Trustee shall, upon receipt thereof,
authenticate and deliver, in exchange for Registered Global Securities
evidencing the Securities of such series, Registered Securities of such series
in definitive form in authorized denominations for an aggregate principal amount
equal to the aggregate principal amount of such Registered Global Securities.
The Corporation may at any time, in its sole discretion, determine that the
Registered Securities of a particular series shall no longer be represented by
Registered Global Securities. In such event, the Corporation shall execute, and
the Trustee upon receipt of a Corporation Order shall authenticate and deliver,
in exchange for such Registered Global Securities, Registered Securities of such
series in definitive form in authorized denominations for an aggregate principal
amount equal to the aggregate principal amount of such Registered Global
Securities.
If so established by the Corporation pursuant to Section 3.01 with respect to
the Securities of a particular series represented by a Registered Global
Security, the Depository for such Registered Global Security may surrender such
Registered Global Security in exchange, in whole or in part, for Registered
Securities of such series in definitive form upon such terms as are acceptable
to the Corporation and such Depository. Thereupon, the Corporation shall
execute, and the Trustee upon receipt of a Corporation Order shall authenticate
and deliver:
(a) to each Person specified by such Depository, one or more
new Registered Securities of such series in authorized
denominations requested by such Person for an aggregate
principal amount equal to, and in exchange for, such Person's
beneficial interest in such Registered Global Security; and
(b) to such Depository, a new Registered Global Security in a
denomination equal to the difference between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of the Registered Securities
authenticated and delivered pursuant to clause (a) above.
<PAGE>
Upon the surrender for exchange of any Registered Global Security for Registered
Securities in definitive form, such Registered Global Security shall be promptly
cancelled and disposed of by the Trustee, and the Trustee shall deliver a
certificate of disposition to the Corporation. Registered Securities in
definitive form issued in exchange for a Registered Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Registered Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Corporation or the Trustee. The Trustee
or such agent shall deliver such Registered Securities to or as directed by the
Persons in whose names such Registered Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Corporation, evidencing the same
indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Notwithstanding anything herein or in the terms of the Securities of any series
to the contrary, none of the Corporation, the Trustee or any agent of the
Corporation or the Trustee (any of which, other than the Corporation, shall rely
on an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security of any series for a Registered Security of
such series if such exchange would result in adverse income tax consequences to
the Corporation (such as, for example, the inability of the Corporation to
deduct from its income the interest payable on the Unregistered Securities)
under then applicable income tax laws.
3.06 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
In case any temporary or definitive Security or any Coupon appertaining thereto
shall become mutilated or defaced or be destroyed, lost or stolen, the
Corporation shall execute, and the Trustee upon receipt of a Corporation Order
shall authenticate and deliver, a new Security of the same series of like tenor
and terms, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in lieu of and substitution for the mutilated, defaced, destroyed,
lost or stolen Security, with Coupons corresponding to any Coupons appertaining
to the Security so mutilated, defaced, destroyed, lost or stolen, or in lieu of
or substitution for the Security to which such mutilated, defaced, destroyed,
lost or stolen Coupon appertained, with Coupons corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In each case, the applicant for a
substitute Security or Coupon shall furnish to the Corporation and to the
Trustee and any agent of the Corporation or the Trustee such security or
indemnity as may be required by them
<PAGE>
to save each of them harmless and, in each case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and, in each case of mutilation
or defacement, shall surrender the Security and related Coupons to the Trustee
or such agent.
Upon the issuance of any substitute Security or Coupon under this Section, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Corporation may, instead of issuing
a substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Corporation and to the Trustee and any agent of the Corporation or the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in each case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of
the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an additional contractual obligation of the Corporation,
whether or not the mutilated, destroyed, lost or stolen Security or Coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
or Coupons of such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express condition that,
to the extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced, destroyed, lost or
stolen Securities and Coupons and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
3.07 Payment; Interest Rights Preserved
(1) Except as otherwise provided in accordance with Section 3.01 for the
Registered Securities of a particular series, payments of the principal of (and
premium, if any) and interest on any Registered Security (other than a
Registered Global Security) will be made at the Corporate Trust Office of the
Trustee.
<PAGE>
(2) Except as otherwise provided as contemplated by Section 3.01, interest on
any Registered Security (other than a Registered Global Security) or on any
Unregistered Security registered as to interest shall be paid to the Person in
whose name such Security or whose entitlement to interest is registered at the
close of business on the Regular Record Date for such interest and, at the
option of the Corporation, may be paid (i)by mailing cheques for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register, or (ii)by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register.
(3) Interest on any Securities with Coupons attached (together with any
additional related amounts payable pursuant to the terms of such Securities)
shall be payable only upon presentation and surrender of the several Coupons for
such interest instalments as are evidenced thereby as they severally mature.
(4) If any temporary Unregistered Security provides that interest thereon may be
paid while in temporary form, the interest on any such temporary Unregistered
Security (together with any additional related amounts payable pursuant to the
terms of such Security) shall be paid, as to the instalments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other instalments of interest, if any, only
upon presentation of such temporary Unregistered Security for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 3.01.
(5) Interest on any Registered Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date ("Defaulted Interest")
shall forthwith cease to be payable to the Person who was the Holder on the
relevant Regular Record Date, and such Defaulted Interest may be paid by the
Corporation, at its election in each case, as provided in paragraph (a) or (b)
below:
(a) The Corporation may elect to make payment of any Defaulted
Interest on Registered Securities and on Unregistered
Securities registered as to interest to the Persons in whose
names the Registered Securities or whose entitlements to
interest are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Corporation shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such Defaulted
<PAGE>
Interest or shall make arrangements satisfactory to the
Trustee for such deposit 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 paragraph provided. Thereupon, the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Corporation of such Special Record Date and, in the name and
at the expense of the Corporation, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of the Registered Securities or each
Person so entitled to interest at his or
her address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be Paid to the Persons in whose names the
Registered Securities or whose entitlements to interest are
registered at the close of business on such Special Record
Date.
(b) The Corporation may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be
listed, and upon such notice as may be required by such
exchange, after notice given by the Corporation to the Trustee
of the proposed payment pursuant to this paragraph.
3.08 Persons Deemed Owners
The Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of or on account of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Registered Security and for all other
purposes whatsoever, whether or not such payment in respect of such Registered
Security shall be overdue, and none of the Corporation, the Trustee and any
agent of the Corporation or the Trustee shall be affected by any notice to the
contrary. The Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Holder of any Unregistered Security and the Holder of any
Coupon as the
<PAGE>
owner of such Unregistered Security or Coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such payment in respect of such Unregistered Security or Coupon
shall be overdue, and none of the Corporation, the Trustee and any agent of the
Corporation or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such Person or Holder, or upon the order of any
such Person or Holder, shall be valid and, to the extent of the amounts so paid,
effectual to satisfy and discharge the indebtedness on any such Security or
Coupon.
3.09 Cancellation
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of any
sinking or analogous fund, if surrendered to the Corporation or any agent of the
Corporation or any agent of the Trustee, shall be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose
of cancelled Securities and Coupons held by it and deliver a certificate of
disposition to the Corporation. If the Corporation or its agent shall acquire
any of the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities or
Coupons unless and until the same are delivered to the Trustee for cancellation.
3.10 Computation of Interest
Except as otherwise established pursuant to Section 3.01 for the Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a year of twelve 30-day months. For the purposes of disclosure under
the Interest Act (Canada), the yearly rate of interest for any period of less
than one year to which interest at a stated rate computed on the basis of a year
of 360 days consisting of twelve 30-day months is equivalent is the stated rate
multiplied by a fraction of which (a)the numerator is the product of (i)the
actual number of days in the calendar year in which the first day of the
relevant period falls and (ii)the sum of (A)the product of (x)30 and (y)the
number of complete months elapsed in the relevant period and (B)the actual
number of days elapsed in any incomplete month in the relevant period, and
(b)the denominator is the product of (i)360 and (ii)the actual number of days in
the relevant period.
Article 4
Satisfaction and Discharge
<PAGE>
4.01 Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for) and the Trustee, upon Corporation Request and at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either
(i) all Securities and Coupons theretofore
authenticated and delivered (other than
(A)Securities and Coupons which have been
destroyed, lost or stolen and which have
been replaced or paid as provided in
Section 3.06 and (B)Securities for whose
payment money has theretofore been deposited
in trust or segregated and held in trust by
the Corporation and thereafter repaid to the
Corporation or discharged from such trust,
as provided in Section 9.06) have been
delivered to the Trustee for cancellation;
or
(ii) all such Securities and Coupons not
theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to
the Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Corporation,
and the Corporation, in the case of clause (A), (B)
or (C) of this clause (a)(ii), has, in accordance
with the conditions set forth in Section 12.04(a),
made or caused to be made deposits in trust for the
purpose in an amount which shall be sufficient to pay
and discharge the entire indebtedness on such
Securities and Coupons not theretofore delivered to
the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such
deposit (in the case of Securities and Coupons which
have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
<PAGE>
(b) the Corporation has paid or caused to be paid all other
sums payable hereunder by the Corporation; and
(c) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation under Section 7.01(b), the obligations of the
Corporation to the Trustee under Sections 6.03(g) and 9.01(d), the obligations
of the Corporation to any Authenticating Agent under Section 6.13 and, if
deposits shall have been made pursuant to subparagraph (a)(ii) of the first
paragraph of this Section, the obligations of the Trustee under Sections 4.02
and 12.05 and the last paragraph of Section 9.06 shall survive.
4.02 Application of Trust Money
Subject to the provisions of the last paragraph of Section 9.06, all money
deposited with the Trustee 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 Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
Article 5
Remedies
5.01 Event of Default
"Event of Default", wherever used herein with respect to the 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):
(a) default by the Corporation in the payment of all or any
part of the principal of any of the Securities of such series
when the same becomes due under any provision hereof or of
such Securities;
<PAGE>
(b) default by the Corporation in the payment of any interest
upon any of the Securities of such series when and as the same
shall become due and payable, and continuance of such default
for a period of 30 days;
(c) default by the Corporation in the observance or
performance of any of the covenants contained in Article Seven
hereof;
(d) default by the Corporation in the observance or
performance of any other covenant or condition contained in
the Securities of such series or in this Indenture and to be
observed or performed on the part of the Corporation and
continuance of such default for a period of 60 days after
notice in writing has been given by the Trustee to the
Corporation specifying such default and requiring the
Corporation to put an end to the same, which notice the
Trustee may give on its own initiative and shall give when
requested to do so by the Holders of not less than 25% in
aggregate principal amount of the Securities of all series
then Outstanding affected thereby;
(e) default by the Corporation in the payment of principal of
or interest on any obligation for borrowed money (other than
an obligation payable on demand or maturing less than 12
months from the creation or issue thereof) having an
outstanding principal amount in excess of 5% of Shareholders'
Equity in the aggregate at the time of default or in the
performance of any other covenant of the Corporation contained
in any instrument under which such obligations are created or
issued, and the holders thereof, or a trustee, if any, for
such holders declare such obligations to be due and payable
prior to the stated maturities thereof, provided that if such
default is waived by such holders or trustee, then the Event
of Default hereunder shall be deemed to be waived without
further action on the part of the Trustee or the Holders;
(f) the making of an order or the passing of an effective
resolution for the winding-up, liquidation or dissolution of
the Corporation, except in the course of carrying out, or
pursuant to, a transaction in respect of which the provisions
of Article Seven hereof are applicable and the conditions
thereof are duly observed and performed;
(g) the making by the Corporation of a general assignment for
the benefit of its creditors or other acknowledgement by the
Corporation
<PAGE>
of its insolvency or the declaration of bankruptcy of the
Corporation or the making by the Corporation of an authorized
assignment or a proposal to its creditors under any bankruptcy
or insolvency or analogous law;
(g.1) the appointment of a custodian or a receiver or receiver
and manager or any other officer with similar powers in
respect of the Corporation or of the property of the
Corporation or any part thereof which is, in the opinion of
the Trustee, a substantial part thereof, unless such process
is in good faith disputed by the Corporation, but in that
event the Corporation shall, if the Trustee so requires, give
security which, in the discretion of the Trustee, is
sufficient to pay in full the amount thereby claimed in case
the claim is held to be valid;
(h) the taking by an encumbrancer of possession of the
property of the Corporation or any part thereof which is, in
the opinion of the Trustee, a substantial part thereof, or the
levy or enforcement of any process or execution upon or
against the property of the Corporation or any part thereof
which is, in the opinion of the Trustee, a substantial part
thereof and which process or execution remains unsatisfied for
such period as would permit any such property to be sold
thereunder, unless such process is in good faith disputed by
the Corporation, but in that event the Corporation shall, if
the Trustee so requires, give security which, in the
discretion of the Trustee, is sufficient to pay in full the
amount thereby claimed in case the claim is held to be valid;
or
(i) any other Event of Default provided in or pursuant to the
supplemental indenture or Directors' Resolution establishing
the terms of such series of Securities as provided in
Section 3.01 or in the form or forms of Security for such
series.
5.02 Acceleration of Maturity
If an Event of Default described in clause (a), (b) or (c) of Section 5.01 shall
have occurred and be continuing with respect to the Securities of any series,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, the Trustee
may in its discretion and shall upon requisition in writing made by the Holders
of not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding, by notice in writing to the Corporation, declare the
entire principal (or, if any of the Securities of that series are Original Issue
Discount Securities, the specified
<PAGE>
portion of the principal) of (and premium, if any, on) all the Securities of
such series then Outstanding and the interest accrued thereon and all other
money owing under the provisions of the Indenture in respect of such Securities
to be due and payable to the Trustee on demand and upon any such demand the same
shall forthwith become immediately due and payable to the Trustee. If an Event
of Default described in clause (d) or (i) of Section 5.01 shall have occurred
and be continuing with respect to the Securities of one or more series, then,
and in each and every such case, unless the principal of all of the Securities
of such affected series shall have already become due and payable, the Trustee
may in its discretion and shall upon requisition in writing made by the Holders
of not less than 25% in aggregate principal amount of the Securities of all such
affected series then Outstanding (as one class), by notice in writing to the
Corporation, declare the entire principal (or, if any of the Securities of that
series are Original Issue Discount Securities, the specified portion of the
principal) of (and premium, if any, on) all the Securities of all such affected
series then Outstanding and the interest accrued thereon and all other money
owing under the provisions of the Indenture in respect of such Securities to be
due and payable to the Trustee on demand, and upon any such demand the same
shall forthwith become immediately due and payable. If an Event of Default
described in clause (e), (f), (g), (g.1) or (h) of Section 5.01 shall have
occurred and be continuing, then, and in each and every such case, unless the
principal of all Securities shall have already become due and payable, the
Trustee may in its discretion and shall upon requisition in writing made by the
Holders of not less than 25% in aggregate principal amount of all the Securities
then Outstanding (as one class), by notice in writing to the Corporation,
declare the entire principal (or, if any of the Securities of that series are
Original Issue Discount Securities, the specified portion of the principal) of
(and premium, if any, on) all the Securities then Outstanding and the interest
accrued thereon and all other money owing under the provisions of the Indenture
in respect of such Securities to be due and payable to the Trustee on demand,
and upon any such demand the same shall forthwith become immediately due and
payable.
The Corporation shall, upon demand of the Trustee, forthwith pay to the Trustee,
for the benefit of the Holders of the Securities of each such series, the whole
amount then due and payable on such Securities, including all Coupons
appertaining thereto, for the principal (or, if any of the Securities of that
series are Original Issue Discount Securities, the specified portion of the
principal) of (and premium, if any) and interest accrued to the date of such
payment on all such Securities of such series and all other money owing under
the provisions of the Indenture in respect of such Securities, together with
interest from the date of such demand to the date of such payment upon overdue
principal and premium and, to the extent that payment of such interest shall be
enforceable under applicable law, on overdue instalments of interest and on such
other money at the same rate as the rate of interest (or Yield to Maturity, in
the case of Original Issue Discount
<PAGE>
Securities) specified in the Securities of such series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and Counsel, except as a
result of negligence or bad faith. Until such demand shall be made by the
Trustee, the Corporation shall pay the principal of (and premium, if any) and
interest on the Securities of such series to the Holders in accordance with the
terms hereof and thereof, whether or not payment of any amount in respect of
such Securities of such series shall be overdue.
If an Event of Default shall have occurred and be continuing the Trustee shall,
within 30 days after it becomes aware of the occurrence of such Event of
Default, give notice of such Event of Default to the Holders of the Securities
of all series then Outstanding affected thereby in the manner provided in
Section 1.07, provided that, notwithstanding the foregoing, except in the case
of Events of Default described in clauses (a) and (b) of Section 5.01, the
Trustee shall not be required to give such notice if the Trustee in good faith
shall have decided that the withholding of such notice is in the best interests
of the Holders of the Securities of all series then Outstanding affected thereby
and shall have so advised the Corporation in writing. Where a notice of the
occurrence of an Event of Default has been given to the Holders of such
Securities pursuant to the preceding sentence and the Event of Default is
thereafter cured, the Trustee shall give notice that the Event of Default is no
longer continuing to the Holders of such Securities within 30 days after it
becomes aware that the Event of Default has been cured.
5.03 Waiver of Default
In the event of the acceleration of maturity with respect to Securities of any
series as provided in Section 5.02 hereof, and prior to such time as a judgment
or decree for payment of the money due has been obtained by the Trustee as
hereinabove in this Article provided, the Holders of a majority in aggregate
principal amount of the Securities of such affected series then Outstanding
(voting as one class, except in the case of Events of Default described in
clauses (a) and (b) of Section 5.01, in which case each series of Securities as
to which such an Event of Default shall have occurred shall vote as a separate
class) shall have the power exercisable by the Act of such Holders to direct the
Trustee to waive the default or to cancel the declaration made by the Trustee or
both and the Trustee shall thereupon waive the default or cancel the declaration
or do both if:
(a) the Corporation has paid or deposited with the Trustee a
sum sufficient to pay:
(i) all overdue interest on all Securities of
that series,
<PAGE>
(ii) the principal of (and premium, if any, on)
any Securities of that series which have
become due otherwise than by such
declaration of acceleration and any interest
thereon at the rate or rates prescribed
therefor in such Securities,
(iii) to the extent that payment of such interest
is lawful, interest upon overdue interest at
the rate or rates specified therefor in such
Securities, and
(iv) 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
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of
Securities of that series which has become due solely by such
declaration of acceleration, have been cured or waived;
provided that no such waiver or cancellation shall extend to or shall affect any
subsequent default or breach or shall impair any right consequent thereon. So
long as it has not become bound as provided in this Article Five to enforce
payment of the principal of (or premium, if any) or interest on all the
Securities of such series then Outstanding the Trustee shall have power to waive
any default arising hereunder if in the Trustee's opinion the same has been
cured or adequate satisfaction made therefor, and in such event to cancel any
such declaration theretofore made.
5.04 Enforcement of Payment of Trustee
Subject to the provisions of Section 5.03, in case the Corporation shall fail to
pay to the Trustee or the Holders of the Securities of any series then
Outstanding the principal of (or premium, if any) or interest accrued on all the
Securities of such series and other money owing hereunder, the Trustee may in
its discretion and shall upon the requisition in writing of the Holders of not
less than 25% in principal amount of the Securities of such series and upon
being indemnified to its reasonable satisfaction against all costs, expenses and
liabilities to be incurred, in its own name and as trustee of an express trust,
institute judicial proceedings for the collection of the amounts so due and
unpaid, prosecute such proceedings to judgment or final decree and enforce the
same against the Corporation or any other obligor upon such Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Corporation or any other obligor upon
such Securities, wherever situated.
<PAGE>
If an Event of Default with respect to the Securities of any series shall occur
and be continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of the Securities of such
series 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.
5.05 Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Corporation or any other obligor upon the
Securities of any series or the property of the Corporation or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Corporation for the payment of overdue
principal, premium or interest) shall be entitled and empowered, either in its
own name or as trustee of an express trust, or as attorney-in-fact for the
respective Holders of the Securities of any series, or in any one or more of
such capacities, by intervention in such proceeding or otherwise:
(a) to file and prove a claim, debt, petition or other
document for the whole amount of the principal (and premium,
if any) and interest (or if the Securities of any series are
Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of each
series, and to execute and file such other papers or documents
and do and perform all such things 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, except as a result of negligence or bad
faith) and of the Holders allowed in such judicial proceeding,
and
(b) 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, liquidator, assignee, trustee, 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
<PAGE>
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, except as a
result of negligence or bad faith, and any other amounts due the Trustee under
clause (d) of Section 9.01.
The Trustee is hereby irrevocably appointed (and the successive respective
Holders of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective Holders of such Securities with authority to
do and perform any and all such acts contemplated by clauses (a) and (b) of this
Section for and on behalf of such Holders as may be necessary or advisable in
the opinion of the Trustee. Nothing herein contained shall be deemed to
authorize the Trustee, unless so authorized by Act of the Holders, 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
of any series 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; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
5.06 Trustee May Enforce Claims without Possession of Securities
All rights of action and claims under this Indenture, or under the Securities of
any series or any Coupons appertaining thereto, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities of such series or
such Coupons or the production thereof in any suit or proceeding relating
thereto, and any such suit or 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,
except as a result of negligence or bad faith, be for the rateable benefit of
the Holders of the Securities and Coupons in respect of which such judgment has
been recovered subject to the provisions of this Indenture.
In any suit or proceeding brought by the Trustee (and also in any suit or
proceeding involving the interpretation or construction of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Securities and Coupons appertaining thereto in
respect to which action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons parties to any such proceedings.
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5.07 Application of Moneys Collected
Any moneys collected or received by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following order,
at the date or dates fixed by the Trustee and, in the case of any distribution
of such moneys on account of the principal of (or premium, if any) or interest
on the Securities of such series, upon presentation of the several Securities
and Coupons appertaining thereto in respect of which moneys have been collected
and the notation thereon of such distribution if such principal, premium and
interest be only partially paid or upon surrender thereof if fully paid:
(a) firstly, to pay or reimburse to the Trustee and the
Holders of the Securities of such series the costs, charges,
expenses, advances and compensation to the Trustee in or about
the execution of its trust, or otherwise in relation hereto,
with interest thereon as herein provided;
(b) secondly, in or towards payment of interest on any overdue
interest on such Securities of such series and thereafter in
or towards payment of the accrued and unpaid interest on such
Securities of such series and interest on any other money
owing under the provisions of this Indenture and thereafter in
or towards payment of the principal (and premium, if any) of
such Securities of such series (or if the Holders of a
majority in aggregate principal amount of the Securities of
such affected series then Outstanding (as one class) shall
have directed payments to be made in accordance with any other
order of priority, or without priority as between principal
(and premium, if any) and interest, then such money shall be
applied in accordance with such direction); provided that no
payment shall be made in respect of any interest the time of
payment of which has been extended contrary to the provisions
of Section 9.01(c) hereof, until the prior payment in full of
all other money payable hereunder; and
(c) thirdly, the surplus, if any, of such money shall be paid
to the Corporation or any other Person lawfully entitled
thereto.
5.08 Limitation on Suits
No Holder of any Security of any series or of any Coupon shall have any right to
institute any action, suit or proceeding, judicial or otherwise, with respect to
this Indenture, for payment of any principal, premium, if any, or interest owing
on any
<PAGE>
Security or Coupon, or for the execution of any trust or power hereunder or for
the appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official, or to have the Corporation wound up, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to
the Trustee of the occurrence of a continuing Event of Default
hereunder with respect to the Securities of such series;
(b) the Holders of not less than 25% in aggregate principal
amount of the Securities of each affected series then
Outstanding (determined as provided in Section 5.02 and as one
class) shall have made written request to the Trustee to
institute such proceeding in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the Trustee,
when so requested by the Trustee, reasonable indemnity
satisfactory to it against the costs, expenses and liabilities
to be incurred therein or thereby in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute
such action, suit or proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
the Holders of not less than a majority in aggregate principal
amount of the Securities of each affected series then
Outstanding (determined as provided in Section 5.02 and as one
class);
it being understood and intended that no one or more Holders of Securities of
any series or Coupons appertaining thereto shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of the Securities or
the Coupons, or to obtain or to seek to obtain preference or priority over any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and rateable benefit of all Holders of
Securities of the affected series and Coupons appertaining thereto.
5.09 Unconditional Right of Holders to Receive Principal, Premium and
Interest
<PAGE>
Notwithstanding any other provision in this Indenture or any provision of any
Security of any series, the Holder of a Security of any series or Coupon
appertaining thereto shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security or Coupon on the Stated Maturity or
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.
5.10 Restoration of Rights and Remedies
In case the Trustee or any Holder shall have proceeded to enforce any right or
remedy under this Indenture and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Holder, then, and in every such case, the Corporation, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder; and all rights, remedies and powers of the Corporation, the
Trustee and the Holders shall continue as though no such proceeding had been
taken.
5.11 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and Coupons in the last
sentence of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
5.12 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of Securities or Coupons 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.
5.13 Control by Holders
<PAGE>
The Holders of not less than a majority in aggregate principal amount of the
Securities of each affected series at the time Outstanding (determined as
provided in Section 5.02 and voting as one class) shall have the right
exercisable by Act of such Holders to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such affected series, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
5.14 Waiver of Past Defaults
Prior to the declaration of acceleration of the Maturity of Securities of any
series as provided by Section 5.02, the Holders of a majority in aggregate
principal amount of the Securities of all series at the time Outstanding with
respect to which a default or breach or an Event of Default shall have occurred
and be continuing (determined as provided in Section 5.02 and voting as one
class) shall have the right exercisable by Act of such Holders to waive any past
default or breach or Event of Default and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on any Security of any such series, or
(b) in respect of a covenant or provision hereof which under
Article Eight cannot be modified or amended without the
consent of all Holders of all Outstanding Securities of any
such series affected.
Upon any such waiver, such default or breach 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 breach or Event of Default or impair any right consequent
thereon.
5.15 Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security or Coupon
by acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an
<PAGE>
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (i)any suit instituted by the
Corporation, (ii)any suit instituted by the Trustee, (iii)any suit instituted by
any Holder, or group of Holders, of the Securities of any series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (d) or
(i)of Section 5.01 (if the suit relates to the Securities of more than one but
less than all series then Outstanding), 10% in aggregate principal amount of the
Securities then Outstanding and affected thereby, or, in the case of any suit
relating to or arising under clause (d) or (i) (if the suit relates to all the
Securities then Outstanding) or clause (e), (f), (g), (g.1) or (h) of Section
5.01, 10% in aggregate principal amount of all Securities then Outstanding or
(iv)any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including interest evidenced by a
Coupon) on any Security on or after the Stated Maturity or Stated Maturities
expressed in such Security or Coupon or, in the case of redemption, on or after
the Redemption Date.
5.16 Waiver of Usury, Stay or Extension Laws
The Corporation covenants (to the fullest 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Corporation (to the
fullest 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; provided that this Section 5.16 shall not preclude the Corporation from
accessing or exercising any rights it may have under applicable bankruptcy,
reorganization, insolvency or similar laws.
Article 6
The Trustee
6.01 Certain Duties and Responsibilities
<PAGE>
(1) The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(2) The Trustee, in exercising its powers and discharging its duties prescribed
or conferred by this Indenture, shall
(a) act honestly and in good faith with a view to the best
interests of the Holders of Securities issued hereunder, and
(b) exercise the care, diligence and skill of a reasonably
prudent trustee.
(3) In the absence of bad faith on its part, the Trustee, in the exercise of its
rights and duties hereunder, may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to and comply with the requirements of
this Indenture.
(4) No provision of this Indenture shall be construed to relieve the Trustee
from the duties imposed on it in Sections 6.01(2) and (3) or from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(a) this Section shall not be construed to limit the effect of
Sections 6.01(1), (2) and (3);
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with an appropriate direction of the Holders pursuant to
Section 5.13 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
<PAGE>
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any
personal 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.
(5) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
(6) The Trustee shall not be appointed as receiver, receiver and manager or
liquidator of the Corporation or all or any part of the Corporation's property,
assets or undertaking.
6.02 Certain Rights of Trustee
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers'
Certificate or other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, Coupon, 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;
(b) any order, request or direction of the Corporation
mentioned herein shall be sufficiently evidenced by a
Corporation Request or Corporation Order and any resolution of
the Directors shall be sufficiently evidenced by a Directors'
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate, including (i)as
to any statements of fact, as evidence of the truth of such
statements, and (ii)to the effect that any particular dealing
or transaction or step or thing is, in the opinion of the
Officers so certifying, expedient, as evidence that it is
expedient; provided that
<PAGE>
the Trustee may in its sole discretion require from the
Corporation or otherwise further evidence or information
before acting or relying on such certificate;
(d) the Trustee may employ or retain such agents, counsel and
other assistants as it may reasonably require for the proper
discharge of its duties hereunder and may pay reasonable
remuneration for all services performed for it;
(e) the Trustee may, in relation to this Indenture, act on the
opinion or advice of or on information obtained from any
Counsel, notary, valuer, surveyor, engineer, broker,
auctioneer, accountant or other expert, whether obtained by
the Trustee or by the Corporation or otherwise;
(f) 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;
(g) 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 pursuant to this
Indenture, unless such Holders shall have offered and
furnished to the Trustee funds for the purpose and reasonable
indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(h) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing
or waiving of all such Events of Default which may have
occurred, 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, Coupon, other evidence of indebtedness or
other paper or document, or any investigation of the books and
records of the Corporation (but the Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Corporation, personally or by
agent or attorney), unless requested to
<PAGE>
do so by the Act of the Holders of a majority in aggregate
principal amount of the Securities of such affected series
then Outstanding; provided, however, that the Trustee may
require reasonable indemnity against the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation; and
(i) 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.
6.03 Protection of Trustee
By way of supplement to the provisions of any law for the time being relating to
trustees, it is expressly declared and agreed as follows:
(a) the recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Corporation, and neither the
Trustee nor any Authenticating Agent shall be liable for or
assume any responsibility for their correctness;
(b) the Trustee makes no representations as to, and shall not
be liable for, the validity or sufficiency of this Indenture
or of the Securities or Coupons;
(c) neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Corporation of
any of the Securities or Coupons or of the proceeds thereof;
(d) nothing herein contained shall impose any obligation on
the Trustee to see or to require evidence of registration or
filing (or renewals thereof) of this Indenture or any
instrument ancillary or supplemental hereto;
(e) the Trustee shall not be bound to give any notice of the
execution hereof;
(f) the Trustee shall not incur any liability or
responsibility whatever or be in any way responsible for the
consequence of any breach on the part of the Corporation of
any of the covenants herein
<PAGE>
contained or of any act of the agents or servants of the
Corporation; and
(g) the Corporation shall indemnify the Trustee for, and hold
it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or
duties hereunder.
6.04 Trustee Not Required to Give Security
The Trustee shall not be required to give security for the execution of the
trusts or its conduct or administration hereunder.
6.05 No Person Dealing with Trustee Need Enquire
No person dealing with the Trustee shall be concerned to enquire whether the
powers that the Trustee is purporting to exercise have become exercisable, or
whether any money remains due upon the Securities or to see to the application
of any money paid to the Trustee.
6.06 May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar
or any other agent of the Corporation, in its individual or in any other
capacity, may become the owner or pledgee of the Securities or Coupons and,
subject to Section 6.08, may otherwise deal with the Corporation with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent, and without being liable to account for
any profit made thereby.
6.07 Moneys Held in Trust
Any money held by the Trustee, which under the trusts of this Indenture may be
invested, shall be invested and reinvested by the Trustee, in accordance with
Corporation Order, in its name or under its control in any securities in which
trustees are, by the laws of the Province of Alberta, authorized to invest.
Pending such investment, such money shall be placed by the Trustee on deposit at
interest at the then current rate in a Canadian chartered bank or trust company.
Unless otherwise provided in this Indenture, all interest or other income
received by the
<PAGE>
Trustee from deposits and investments under this Section shall belong to the
Corporation.
6.08 Conflict of Interest
(1) The Trustee represents to the Corporation that at the time of the execution
and delivery hereof no material conflict of interest exists between the
Trustee's role as a fiduciary hereunder and the Trustee's role in any other
capacity and agrees that in the event of a material conflict of interest arising
hereafter it will, within 90 days after becoming aware that a material conflict
of interest exists, either eliminate the same or resign its trust hereunder.
(2) If, notwithstanding Section 6.08(1), the Trustee has a material conflict of
interest, the validity and enforceability of this Indenture, of the security
interest (if any) constituted by or under this Indenture and of the Securities
of any series issued hereunder shall not be affected in any manner whatsoever by
reason only of the existence of such material conflict of interest.
(3) If the Trustee contravenes Section 6.08(1), the Corporation or the Holders
of not less than 25% in aggregate principal amount of the Securities of any
series affected thereby may apply to the Court of Queen's Bench of Alberta for
any order that the Trustee be replaced, and such court may make an order on such
terms as it thinks fit.
6.09 Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder for each series of Securities
which shall be a corporation resident or authorized to carry on the business of
a trust company in the Province of Alberta and, if more than one Person is
appointed a Trustee hereunder for any series of Securities, such second Trustee
may be (i)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 exercise corporate trust powers and subject to
supervision or examination by United States Federal or State authority, or (ii)a
corporation or other Person organized and doing business under the laws of any
other government which is permitted to act as Trustee pursuant to any rule,
regulation or order of the Commission, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by an authority
of such government, or a political subdivision thereof, substantially equivalent
to the supervision or examination applicable to an institution described in
clause (i)above, in each case under clauses (i) and (ii) having a combined
capital and surplus of at least $50,000,000 and an office in New York, New York,
provided that there shall be
<PAGE>
such a corporation or other Person in such location willing to act upon
customary and reasonable terms. If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Corporation nor any Person
directly or indirectly controlling, controlled by or under common control with
the Corporation shall serve as Trustee. For purposes of the preceding sentence,
the term "control" shall mean the power to direct the management and policies of
a Person, directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract, or otherwise, and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
6.10 Resignation and Removal; Appointment of Successor
(1) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(2) The Trustee may resign its trust and be discharged from all further duties
and liabilities hereunder at any time with respect to the Securities of one or
more series by giving to the Corporation three months' notice in writing or such
shorter notice as the Corporation may accept as sufficient. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 90 days after the giving of such notice of
resignation, the resigning Trustee may apply to the Court of Queen's Bench of
Alberta for an order for the appointment of a Successor Trustee with respect to
the Securities of such series.
(3) The Trustee may be removed at any time with respect to the Securities of any
series by the Act of the Holders of a majority in aggregate principal amount of
the Securities of such series then Outstanding delivered to the Trustee and to
the Corporation.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.08(1) with
respect to the Securities of any series after written request
therefor by
<PAGE>
the Corporation or by any Holder who has been a bona fide
Holder of a Security of such series for at least six months;
or
(b) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the
Corporation or by any such Holder; or
(c) the Trustee shall be dissolved, shall become incapable of
acting or shall become or be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
then, in any such case (i)the Corporation by a Directors' Resolution may remove
the Trustee with respect to the Securities of any or all series, as appropriate,
or (ii)subject to Section 5.15, any Holder who has been a bona fide Holder of a
Security of an affected series for at least six months may, on behalf of such
Holder and all other Holders similarly situated, apply to the Court of Queen's
Bench of Alberta for an order for the removal of the Trustee and the appointment
of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by a Directors'
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of such series and shall comply with the applicable
requirements of Section 6.11. 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 aggregate principal amount of the Securities of such
series then Outstanding delivered to the Corporation and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Corporation with
respect to the Securities of such series. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Corporation
or the Holders and accepted appointment in the manner required by Section 6.11,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of such Holder and all other Holders similarly
situated, apply to the Court of Queen's Bench of Alberta
<PAGE>
for any order for the appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series (i)if any
Unregistered Securities of any affected series are then Outstanding, to the
Holders thereof by publication of such notice at least once in an Authorized
Newspaper in Canada, if required, and, if required, The City of New York, and,
if required, the United Kingdom and, if required, Luxembourg, (ii)if any
Unregistered Securities of any affected series are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee by
mailing such notice to such Holders at such addresses (and the Trustee shall
make such addresses available to the Corporation for such purpose) and (iii)if
any Registered Securities of any affected series are then Outstanding, to the
Holders thereof by mailing such notice to such Holders at their addresses as
they shall appear on the Security Register. If the Corporation shall fail to
give such notice within 10days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be given at the
expense of the Corporation. 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.
6.11 Acceptance of Appointment by Successor
(1) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more series, each successor Trustee so appointed shall
execute, acknowledge and deliver to the Corporation and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee with respect to such applicable series of the
Securities 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 with respect to such
applicable series; but, on the request of the Corporation or the successor
Trustee, such retiring Trustee shall, upon payment of its charges then unpaid,
execute, acknowledge and deliver an instrument transferring to such successor
Trustee all such 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.
(2) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but less then all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute, acknowledge and deliver an indenture
supplemental hereto in
<PAGE>
which each successor Trustee shall accept such appointment and which shall (i)
contain such provisions as shall be deemed 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 each
series to which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee shall not be retiring with respect to the Securities of all
series, 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 the series as to which the retiring Trustee
shall not be retiring shall continue to be vested in the retiring Trustee and
(iii) add to or change any of the provisions of this Indenture to the extent
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 (except as specifically provided for therein)
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 each series to which
the appointment of such successor Trustee relates, and such retiring Trustee
shall duly assign, transfer and deliver to each successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of each series to which the appointment of such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in
subsection (1) or (2) of this Section, as the case may be.
(4) 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.
6.12 Merger, Consolidation, Amalgamation or Succession to Business
Any corporation into which the Trustee may be merged or with which it may be
consolidated or amalgamated, or any corporation resulting from any merger,
consolidation or amalgamation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such
<PAGE>
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or instrument 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 though such successor Trustee had itself authenticated such
Securities.
6.13 Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of the Securities which shall be authorized to act on behalf of, and
subject to the direction of, the Trustee to authenticate the Securities of such
series, including Securities issued upon original issue, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 3.06; and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as though authenticated by
the Trustee. Wherever reference is made in this Indenture to the authentication
and delivery of the Securities of any series by the Trustee or to the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by any Authenticating Agent
for such series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be either (i) 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 or (ii) a corporation or other Person organized and doing business
under the laws of Canada or any province thereof or England or Luxembourg,
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 governmental authority of its jurisdiction of incorporation and
organization. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent 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, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
<PAGE>
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated or amalgamated, or any corporation resulting
from any merger, conversion, consolidation or amalgamation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of any
Authenticating Agent, shall be the successor to such Authenticating Agent with
respect to all series of the Securities for which it served as 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 such Authenticating Agent.
Any Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Corporation. The Trustee may at any time terminate the
appointment of any Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Corporation. Upon receiving such notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Corporation and shall, at the expense of the Corporation,
provide notice of such appointment to all Holders of the Securities affected
thereby in the manner provided in Section 6.10 with respect to the appointment
of a successor Trustee. Any successor Authenticating Agent, upon acceptance of
its appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as though originally named
as an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services hereunder.
6.14 Environmental Indemnity
Subject to Section 6.01(4), the Corporation shall indemnify the Trustee, its
directors, officers, employees and agents, and all of their respective
successors and assigns, (collectively in this Section 6.14, the "Indemnified
Parties") against any loss, expense, claim, liability or asserted liability
(including (i) strict liability, (ii) costs and expenses of abatement and
remediation of spills or releases of contaminants, (iii) liabilities of the
Indemnified Parties to Persons in respect of bodily injury, property damage,
damage to or impairment of the environment or any other injury or damage and
(iv) liabilities of the Indemnified Parties to Persons for foreseeable and
unforseeable consequential damages) incurred as a result of:
(a) the administration of any trust created by this Indenture;
or
<PAGE>
(b) the exercise by the Trustee of any rights under this
Indenture;
which result from or relate, directly or indirectly, to:
(c) the presence or release of any contaminants, by any means
or for any reason, on the Corporation's property or assets,
whether or not release or presence of the contaminants was
under the control, care or management of the Corporation, or
of a previous owner or of a tenant;
(d) any contaminant present on or released from any property
contiguous to the Corporation's property or assets; or
(e) the breach or alleged breach of any environmental laws by
the Corporation.
Article 7
Consolidation, Merger, Amalgamation, Sale Or Transfer
7.01 Successor Corporation
The Corporation shall not enter into any transaction whereby all or
substantially all of its undertaking, property and assets would become the
property of any other Person (herein called a "Successor Corporation") (whether
by way of reorganization, reconstruction, consolidation, amalgamation, merger,
transfer, sale or otherwise) unless:
(a) following consummation of the transaction, the Successor
Corporation will be a corporation, partnership or trust,
validly existing under the laws of Canada or any province
thereof, the United States of America or any State thereof or
the District of Columbia;
(b) prior to or contemporaneously with the consummation of
such transaction the Corporation and the Successor Corporation
shall have executed such instruments and done such things as
are necessary or advisable to establish that upon the
consummation of such transaction:
(i) the Successor Corporation will have assumed
all the covenants and obligations of the
Corporation under this Indenture in respect
of the Securities of every series; and
<PAGE>
(ii) the Securities of every series will be valid
and binding obligations of the Successor
Corporation entitling the Holders thereof,
as against the Successor Corporation, to all
the rights of Holders of Securities under
this Indenture;
(c) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the
Corporation or any Subsidiary as a result of such transaction
as having been incurred by the Corporation or such Subsidiary
at the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be
continuing;
(d) if, as a result of any such transaction, properties or
assets of the Corporation would become subject to a mortgage,
charge, hypothec, pledge or other security or encumbrance to
secure any indebtedness for borrowed money, the Corporation or
Successor Corporation, as the case may be, shall take such
steps as shall be necessary to comply with clause (e) of
Section 9.01, treating the mortgage, charge, hypothec, pledge
or other security or encumbrance as having been created by the
Corporation at the time of such transaction; and
(e) the Corporation has delivered to the Trustee an Opinion of
Counsel in effect stating that clauses (a), (b) and (d) of
this Section have been complied with and an Officers'
Certificate in effect stating that clause (c) of this Section
has been complied with.
7.02 Successor to Possess Powers of the Corporation
Whenever the conditions of Section 7.01 hereof shall have been duly observed and
performed the Successor Corporation shall possess and from time to time may
exercise each and every right and power of the Corporation under this Indenture
in the name of the Corporation or otherwise and any act or proceeding by any
provision hereof required to be done or performed by any Director or Officer of
the Corporation may be done and performed with like force and effect by the like
directors or officers of the Successor Corporation.
Article 8
Supplemental Indentures
<PAGE>
8.01 Supplemental Indentures Without Consent of Holders
Without the consent of the Holders of any series, the Corporation, when
authorized by a Directors' 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 one or more of the following purposes:
(a) to evidence the succession of another Person, or
successive successions of other Persons, to the Corporation
and the assumption by any such successor of the covenants and
obligations of the Corporation herein and in the Securities
and the Coupons appertaining thereto;
(b) to add to the covenants of the Corporation for the benefit
of the Holders of all or any series of the Securities (and if
such covenants are to be for the benefit of less than all
series of the Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Corporation;
(c) to add any additional Events of Default with respect to
all or any series of the Securities;
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of the Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons or to permit or facilitate the
issuance of Securities in uncertificated form;
(e) to add to, change or eliminate any provision of this
Indenture in respect of one or more series of Securities,
provided that any such addition, 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;
(f) to secure the Securities and the Coupons appertaining
thereto pursuant to the requirements of Section 9.01 or
otherwise;
(g) to establish the form or forms and the terms of the
Securities of any series as permitted by Sections 2.01 and
3.01;
<PAGE>
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or
(i) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or
in any supplemental indenture, or to make any other provisions
as may be necessary or desirable, including the making of any
modifications in the form of the Securities and the Coupons
appertaining thereto, provided that such action shall be not
prejudicial to the interests of the Holders of the Securities
of any series or the Coupons appertaining thereto.
8.02 Supplemental Indentures With Consent of Holders
With the consent of the Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding affected by such
supplemental indenture (voting as one class), by Act of such Holders delivered
to the Corporation and the Trustee, the Corporation, when authorized by a
Directors' Resolution, and the Trustee, at any time or from time to time, shall
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 or any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining thereto; provided, however, that no such supplemental
indenture shall, without the consent of all Holders of all Outstanding
Securities affected thereby:
(a) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, such Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 5.02, or change any Place of Payment where, or the
coin or currency in which, such Security 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
<PAGE>
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of such series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain Events of Default hereunder and their consequences)
provided for in this Indenture, or
(c) modify any of the provisions of this Section or
Section 5.14, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby, provided, however,
that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the
Trustee", in accordance with the requirements of Sections 6.11
and 8.01(h) and concomitant changes in this Section, or the
deletion of this proviso.
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 (but less than all) series of the Securities, or which
modifies the rights of the Holders of such series or of the Coupons appertaining
thereto with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of the Securities of any
other series or of the Coupons appertaining thereto.
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.
8.03 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
(subject to Section 6.01) shall be fully protected in relying upon, an Officers'
Certificate and 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.
<PAGE>
8.04 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 the Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
8.05 Reference in Securities to Supplemental Indentures
The Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
Article 9
Covenants of the Corporation
9.01 General Covenants
The Corporation hereby covenants and agrees that, subject to all the provisions
of this Indenture:
(a) it will duly and punctually pay or cause to be paid to the
Holder of every Security of each series the principal thereof,
premium thereon, if any, and interest accrued thereon and, in
case of default, interest on the amount in default, on the
dates and at the places, in the money and in the manner
mentioned herein and in such Securities;
(b) it will at all times maintain its corporate existence and
will carry on and conduct its business in a proper and
efficient manner; provided, however, that nothing herein
contained shall prevent the Corporation from ceasing to
operate any business or property if, in the opinion of the
Directors, it shall be advisable and in the best interests of
the Corporation so to do;
<PAGE>
(c) in order to prevent any accumulation after the Stated
Maturity of interest, it will not, directly or indirectly,
extend or assent to the extension of time for payment of any
interest upon any Security, and will not, directly or
indirectly, be a party to or approve any such arrangement by
purchasing or funding such interest or in any other manner;
(d) it will pay the Trustee reasonable remuneration for its
services hereunder and will repay to the Trustee on demand all
expenditures or advances whatever which the Trustee may
reasonably make or incur in and about the execution of the
trusts hereby created, and such money shall be payable out of
any funds coming into the possession of the Trustee in
priority to any Security, except funds held in trust for the
benefit of the Holders of particular Securities or Coupons.
The said remuneration shall continue to be payable until the
trusts hereof shall be finally wound up and whether or not the
trusts hereof shall be in the course of administration by or
under the direction of a court; and
(e) it will not create any mortgage, charge, hypothec, pledge
or other security or encumbrance on any of its property or
assets to secure any indebtedness for borrowed money without
also at the same time or prior thereto securing the Securities
then Outstanding so that, in the Opinion of Counsel, such
Securities shall be secured equally and rateably with such
other indebtedness for borrowed money, provided that this
covenant shall not apply to nor operate to prevent:
(i) any security, except on fixed assets and shares of
any Subsidiary or Associate, given in the ordinary
course of business to any bank or banks, or others,
to secure any indebtedness payable on demand or
maturing within 12 months of the date that such
indebtedness is originally incurred;
(ii) any Purchase Money Mortgage;
(iii) any security on cash or marketable securities of the
Corporation granted in connection with crude oil,
natural gas or natural gas liquids price hedging
arrangements;
<PAGE>
(iv) any security on any Petroleum and Natural Gas Right,
tangible assets associated therewith or the products
derived therefrom or the proceeds of sale of such
products, to secure production payments, royalties,
carried interests and similar obligations or to
secure obligations in connection with or necessarily
incidental to commitments of purchase and sale of, or
the transportation or distribution of, products
derived from the Petroleum and Natural Gas Right,
including without limitation forward sales;
(v) any security on any resource property of the
Corporation that has not been in commercial
production during the 12-month period ending on the
date hereof, or has not been in commercial production
during the 12-month period ending at the time of the
imposition of such security to secure any
indebtedness incurred for the development or
improvement thereof or the development or improvement
of any other resource property of the Corporation
that has not been in commercial production during the
12-month period ending on the date hereof or has not
been in commercial production during the 12-month
period ending at the time of the imposition of such
security;
(vi) any security in favour of the government of any
country in which the Corporation owns assets or
carries on business or the government of any
province, state, municipality or other political
subdivision in any such country, or any department or
agency of any such government, given pursuant to a
contract, concession, lease, license, franchise,
grant, permit or other instrument pertaining to such
assets or business or required by applicable laws;
(vii) liens for taxes, assessments or other governmental
charges not yet due or, if due, the validity of which
is being contested in good faith, and liens for the
excess of the amount of any past due taxes for which
a final assessment has not been received over the
amount of such taxes as estimated and paid by the
Corporation;
(viii) unless it constitutes an Event of Default, the lien
of any judgment rendered or claim filed against the
Corporation, which is being contested in good faith;
<PAGE>
(ix) undetermined or inchoate liens and charges (including
builders', mechanics', warehousemen's, carriers' and
other similar liens) incidental to construction or
current operations which relate to obligations not
due or delinquent or which are being contested in
good faith by the Corporation;
(x) liens incurred or created in the ordinary course of
business on any particular Petroleum and Natural Gas
Right or on any tangible assets associated therewith
as security, in favour of any other person who is
conducting the exploration, exploitation, development
or operation of the property or asset, to secure
payment by the Corporation of its proportion of the
costs and expenses of such exploration, exploitation,
development or operation incurred by such other
person;
(xi) any security given by the Corporation to a public
utility or municipality or governmental or other
public authority when required by such utility or
municipality or other authority in connection with
utility or municipal services required for the
operations of the Corporation in the ordinary course
of its business;
(xii) any security on a lease or other instrument
permitting the extraction of substances other than
crude oil, natural gas, natural gas liquids and
related products by the Corporation, provided that
any such lease does not interfere with the enjoyment
by the Corporation of any Petroleum and Natural Gas
Right;
(xiii) any renewal, refunding or extension of any security
or encumbrance referred to in the foregoing clauses
(i) or (xii) or of any security or encumbrance on any
property in existence at the time of acquisition
thereof, in which the principal outstanding after
such renewal, refunding or extension is not increased
and the security or encumbrance is limited to the
property originally subject thereto and any
improvements thereon; or
(xiv) any security or encumbrance, other than those
referred to in the foregoing clauses (i) to (xiii),
created by the Corporation if, after giving effect to
the creation of such
<PAGE>
security or encumbrance, the aggregate principal
amount of the indebtedness secured by such securities
or encumbrances would not be greater than 5% of
Shareholders' Equity.
9.02 Trustee May Perform Covenants
If the Corporation shall fail to perform any of its covenants contained in this
Indenture, the Trustee may notify the Holders of Securities of each series
affected thereby of such failure on the part of the Corporation or it may itself
perform any such covenants capable of being performed by it, but shall be under
no obligation so to do. All sums expended or advanced by the Trustee in such
connection shall be repayable to the Trustee. No such performance or advance by
the Trustee shall be deemed to relieve the Corporation from any default
hereunder.
9.03 Certificates of Compliance
The Corporation shall deliver to the Trustee annually within 120 days (or such
longer periods as the Trustee in its discretion may consent to) after the end of
each fiscal year, and at any other reasonable time if the Trustee so requires,
an Officers' Certificate stating that the Corporation has complied with all
covenants, conditions or other requirements contained in this Indenture,
non-compliance with which would, with the giving of notice or the lapse of time,
or both, or otherwise, constitute an Event of Default hereunder or, if the
Corporation has not complied with all such requirements, giving particulars as
to each non-compliance.
9.04 Financial Statements
The Corporation shall annually within 120 days (or such longer period as the
Trustee in its discretion may consent to) after the end of its fiscal year
furnish to the Trustee a copy of the consolidated financial statements and of
the report of the Corporation's Auditors thereon which are furnished to the
shareholders of the Corporation. The Trustee shall have no obligation to analyze
such financial statements or to evaluate the financial performance of the
Corporation as indicated therein in any manner whatsoever.
9.05 Maintenance of Office or Agency
The Corporation will maintain in each Place of Payment for the Securities of any
series an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Corporation in respect of the Securities of that series and this Indenture
may be
<PAGE>
served. The Corporation 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 Corporation shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Corporation of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Corporation will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
9.06 Money for Securities Payments to Be Held in Trust
If the Corporation shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of or any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its action or failure so to act.
The Corporation will cause each Paying Agent for the Securities of any series
other than the Trustee 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, during the continuance of any
default by the Corporation (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of that
series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the
Securities of that series.
<PAGE>
The Corporation may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Corporation
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Corporation or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Corporation or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Corporation Request, or (if then held by the
Corporation) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Corporation for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Corporation as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in an Authorized
Newspaper in Canada, if required, and, if required, The City of New York and, if
required, the United Kingdom and, if required, Luxembourg, notice that such
money remains unclaimed and that, after a date specified therein, which shall be
not less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Corporation.
9.07 Maintenance of Corporate Existence
Subject to Article Seven, the Corporation will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
9.08 Payment of Taxes and Other Claims
The Corporation will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i)all taxes, assessments and governmental
charges levied or imposed upon the Corporation or upon the income, profits or
property of the Corporation, and (ii)all lawful claims against the Corporation
for labour, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Corporation; provided, however, that the Corporation
shall not be required to pay or discharge or cause to be paid or discharged any
such tax,
<PAGE>
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Article 10
Redemption of Securities
10.01 Applicability of Article
The Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
established in accordance with Section 3.01 for the Securities of a particular
series) in accordance with this Article.
10.02 Election to Redeem; Notice to Trustee
The election of the Corporation to redeem any Securities shall be evidenced by a
Directors' Resolution. In case of any redemption at the election of the
Corporation of less than all the Securities of any series, the Corporation
shall, at least 60 days prior to the Redemption Date fixed by the Corporation
(unless a shorter notice shall be acceptable to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of the Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Corporation shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
10.03 Selection by Trustee of Securities to be Redeemed
If less than all the Securities of any series are to be redeemed (unless all of
the Securities of such series and of a specified tenor 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 among the Outstanding
Securities of such series (and, if applicable, of the specified tenor) 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 (equal to the minimum authorized denomination for the Securities of
such series or any integral multiple thereof) of the principal amount of the
Securities of such series of a denomination larger than the minimum authorized
denomination for the Securities of such series.
<PAGE>
The Trustee shall promptly notify the Corporation in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
10.04 Notice of Redemption
Notice of redemption to the Holders of Registered Securities of any series to be
redeemed shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
Redemption Date, to such Holders at their addresses as they shall appear on the
Security Register. Notice of redemption to the Holders of Unregistered
Securities of any series to be redeemed who have filed their names and addresses
with the Trustee shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior to
the Redemption Date, to such Holders at such filed addresses. Notice of
redemption to all other Holders of Unregistered Securities of any series shall
be given by publication in an Authorized Newspaper in Canada, if required, and,
if required, The City of New York, and, if required, the United Kingdom and, if
required, Luxembourg, in each case once in each of two successive calendar
weeks, the first publication to be not less than 30 days and not more than 60
days prior to the Redemption Date. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of any series designated for
redemption in whole or in part, shall not affect the validity of the proceedings
for the redemption of any other Security of such series.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the accrued and unpaid interest;
(d) if less than all of the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial
<PAGE>
redemption, the portions of the principal amounts) of
the particular Securities to be redeemed;
(e) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and that interest thereon will cease to accrue on and after
such date;
(f) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(g) that the redemption is for a sinking or analogous fund, if
such is the case.
Each notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation.
10.05 Deposit of Redemption Price
On or prior to any Redemption Date, the Corporation shall deposit with the
Trustee or with a Paying Agent (or, if the Corporation shall be acting as its
own Paying Agent, segregate and hold in trust as provided in Section 9.06) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on the Redemption Date.
10.06 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, and from and after such date (unless the Corporation
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest, and the unmatured Coupons, if any,
appertaining thereto shall be void. Upon surrender of any such Security for
redemption in accordance with such notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Corporation at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, instalments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable, in the case of Unregistered
Securities with Coupons attached thereto, to the Holders of the Coupons for such
interest upon the surrender thereof or, in the case of Registered Securities, to
the
<PAGE>
Holders of such Registered Securities, registered as such at the close of
business on the relevant Regular or Special Record Dates according to their
terms and the provisions of Section 3.07.
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 same rate specified in such
Security as the rate of interest (or Yield to Maturity, in the case of Original
Issue Discount Securities).
10.07 Securities Redeemed in Part
Any Security which is to be redeemed only in part shall be surrendered at an
office or agency of the Corporation at a Place of Payment therefor (with, if the
Corporation or the Trustee shall so require in the case of a Registered
Security, due endorsement by, or a written instrument of transfer in form
satisfactory to the Corporation and the Trustee duly executed by, the Holder
thereof or his or her attorney duly authorized in writing), and the Corporation
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities of the same
series and of like tenor, 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.
Article 11
Sinking Funds
11.01 Applicability of Article
The provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of any series, except as otherwise established in
accordance with Section 3.01 for the Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is in this Section referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is in this Section referred to as an
"optional sinking fund payment". The date on which any sinking fund payment is
to be made is in this Section referred to as the "sinking fund payment date". If
so provided by the terms of the Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.02.
Each sinking fund payment in respect of the Securities of any series shall be
<PAGE>
applied to the redemption of the Securities of such series as provided for by
the terms of the Securities of such series.
11.02 Satisfaction of Sinking Fund Payments with Securities
In lieu of making all or any part of any mandatory sinking fund payment with
respect to the Securities of any series in cash, the Corporation may at its
option (i)deliver to the Trustee Securities of such series theretofore purchased
or otherwise acquired (except upon redemption pursuant to any mandatory sinking
fund payment) by the Corporation or receive credit for Securities of such series
(not previously so credited) theretofore purchased or otherwise acquired (except
as foresaid) by the Corporation and delivered to the Trustee for cancellation
pursuant to Section 3.09; (ii)receive credit for any optional sinking fund
payments (not previously so credited) made pursuant to this Section; or
(iii)receive credit for any Securities of such series (not previously so
credited) redeemed by the Corporation through any optional redemption provision
contained in the terms of such series. 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 therefor
and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
11.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment date for the Securities
of any series, the Corporation will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 1.02)
(i) specifying the portion of the mandatory sinking fund payment due on such
sinking fund payment date to be satisfied by the payment of cash and the portion
to be satisfied by credit of Securities of such series pursuant to Section
11.02, (ii) stating that none of the Securities of such series to be so
credited has theretofore been so credited, and (iii)stating whether or not the
Corporation intends to exercise its right to make an optional sinking fund
payment on such date with respect to such series and, if so, specifying the
amount of such optional sinking fund payment. Any Securities of such series to
be so credited and required to be delivered to the Trustee in order for the
Corporation to be entitled to credit therefor which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 3.09 to the Trustee with such Officers' Certificate. Such Officers'
Certificate shall be irrevocable, and upon its receipt by the Trustee the
Corporation shall become unconditionally obligated to make all the cash payments
and other deliveries therein referred to on or before the next succeeding
sinking fund payment date. Failure by the Corporation, on or before any such
60th day, to deliver such Officers' Certificate and Securities, if any, shall
not constitute a default hereunder,
<PAGE>
but shall constitute, on and as of such 60th day, the irrevocable election by
the Corporation that (i) the mandatory sinking fund payment for the Securities
of such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash and (ii) the Corporation will make no optional sinking
fund payment with respect to the Securities of such series on such date. Not
less than 30 days prior to each sinking fund payment date with respect to the
Securities of any series, the Trustee shall select the Securities of such series
to be redeemed upon such sinking fund payment date in the manner specified in
Section 10.03 (the Trustee's decision as to such selection for redemption being
final and binding on all parties) and cause notice of the redemption thereof to
be given in the name and at the expense of the Corporation in the manner
provided in Section10.04. Such notice of redemption having been duly given, the
redemption of the Securities of such series to be redeemed shall be made upon
the terms and in the manner stated in Sections 10.05, 10.06 and 10.07.
Article 12
Defeasance and Covenant Defeasance
12.01 Corporation's Option to Effect Defeasance
The Corporation may at any time, at its option, by Directors' Resolution elect
to have either Section 12.02 or Section 12.03 applied to the outstanding
Securities of any series upon compliance with the applicable conditions set
forth in this Article Twelve.
12.02 Defeasance and Discharge
Upon the Corporation's exercise of the option provided in Section 12.01 to
defease the Securities of a particular series, the Corporation shall be
discharged from its obligations with respect to the Securities of such series on
the date that the applicable conditions set forth in Section 12.04 shall be
satisfied. The term "defeasance" means that the Corporation shall be deemed to
have paid and discharged the entire indebtedness represented by the Securities
of such series and all Coupons appertaining thereto and to have satisfied all
its other obligations under such Securities and Coupons and this Indenture
insofar as such Securities and Coupons shall be concerned; and the Trustee, at
the expense of the Corporation, shall execute proper instruments acknowledging
the same; provided, however, that the following rights, obligations, powers,
trusts, duties and immunities shall survive until otherwise terminated or
discharged hereunder: (i) the rights of the Holders of the Securities of such
series and such Coupons to receive, solely from the trust fund provided for in
Section12.04, payments in respect of the principal of (and premium, if any)and
interest on such Securities and Coupons
<PAGE>
when and as such payments shall become due, (ii) the Corporation's obligations
with respect to such Securities and Coupons under Sections 3.04, 3.05, 3.06 and
9.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, (iv) the rights and obligations under this Article Twelve and (v) the
rights and obligations described in the second paragraph of Section 4.01.
Subject to compliance with this Article 12, the Corporation may exercise its
option with respect to defeasance under this Section 12.02 notwithstanding the
prior exercise of its option with respect to covenant defeasance under Section
12.03 with respect to the Securities of such series.
12.03 Covenant Defeasance
Upon the Corporation's exercise of the option provided in Section 12.01 to
obtain a covenant defeasance with respect to the Securities of a particular
series, the Corporation shall be released from its obligations under Section
9.01(e) and Article 7 with respect to the Securities of such series on and after
the date that the applicable conditions set forth in Section 12.04 shall be
satisfied. The term "covenant defeasance" means that, with respect to the
Securities of such series, the Corporation may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
Section 9.01(e) and Article 7, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or Article or by reason of any
reference in such Section or Article to any other provision herein or in any
other document, and such omission to comply shall not constitute an Event of
Default under Section 5.01(c) and (d) with respect to the Securities of such
series; but the remaining provisions of this Indenture and the other terms of
the Securities of such series shall be unaffected thereby.
12.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to defeasance under Section12.02 and
covenant defeasance under Section 12.03 with respect to the Securities of a
particular series:
(a) The Corporation shall have irrevocably deposited or caused
to be deposited with the Trustee as a trust fund in trust for
the purpose of making the payments described below, and
dedicated solely to, the benefit of the Holders of the
Securities of such series: (i)the Required Currency in an
amount, or (ii)Government Obligations which, through scheduled
payments of principal and interest in respect thereof in
accordance with their terms, will assure, not later than one
day before the due date of any payment, cash in an amount, or
(iii)a combination thereof, sufficient, in the opinion of a
nationally
<PAGE>
recognized firm of independent chartered accountants expressed
in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee to pay and discharge: (A)the principal of (and
premium, if any, on) and each instalment of principal of (and
premium, if any) and interest on the Securities of such series
and the Coupons appertaining thereto on the Stated Maturity of
such principal or instalment of principal or interest; and
(B)any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the dates on
which such payments shall become due and payable in accordance
with the terms of this Indenture and of such Securities.
(b) No Event of Default or event which, with notice or lapse
of time or both, would become an Event of Default with respect
to the Securities of such Series shall have occurred and be
continuing on the date of such deposit or, insofar as Sections
5.01(f), (g), (g.1) and (h) 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).
(c) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the
Corporation is a party or by which it is bound.
(d) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any national
securities exchange registered under the Securities Exchange
Act of 1934 (United States of America), as amended, to be
delisted.
(e) In the case of a defeasance, the Corporation shall have
delivered to the Trustee an Opinion of Counsel to the effect
that (A) if the deposit referred to in paragraph (a) above
shall include Government Obligations in respect of any
government other than the United States of America, such
deposit shall not result in such trust constituting an
"investment company" under the Investment Company Act of 1940
(United States of America), as amended, and (B)(i) the
Corporation has received from the Internal Revenue Service a
private letter ruling or there has been published by the
Internal Revenue Service a revenue ruling pertaining to a
comparable form of transaction, or (ii) since the date of this
<PAGE>
Indenture, there has been a change in the applicable United
States Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the
Holders of the Securities of such series then Outstanding and
the Coupons appertaining thereto will not recognize income,
gain or loss for United States Federal income tax purposes as
a result of such defeasance and will be subject to United
States Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such defeasance had not occurred.
(f) In the case of a covenant defeasance, the Corporation
shall have delivered to the Trustee an Opinion of Counsel to
the effect that (A) if the deposit referred to in paragraph
(a) above shall include Government Obligations in respect of
any government other than the United States of America, such
deposit shall not result in such trust constituting an
"investment company" under the Investment Company Act of 1940
(United States of America), as amended and (B) the Holders of
the Securities of such series then Outstanding and the Coupons
appertaining thereto will not recognize income, gain or loss
for United States Federal income tax purposes as a result of
such covenant defeasance and will be subject to United States
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred.
(f.1) In the case of a defeasance or covenant defeasance, the
Corporation shall have delivered to the Trustee an Opinion of
Counsel qualified to practice law in Canada or a ruling from
Revenue Canada, Taxation to the effect that the Holders of
Outstanding Securities will not recognize income, gain or loss
for Canadian federal, provincial or territorial income tax or
other tax purposes as a result of such defeasance or covenant
defeasance, as applicable, and will be subject to Canadian
federal, provincial or territorial income tax and other tax on
the same amounts, in the same manner and at the same times as
would have been the case had such defeasance or covenant
defeasance, as the case may be, not occurred (and for the
purposes of such opinion, such Canadian counsel shall assume
that Holders of the Securities include Holders who are not
resident in Canada).
(g) The Corporation shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all
<PAGE>
conditions precedent provided for in this Section12.04
relating to either the defeasance under Section12.02 or the
covenant defeasance under Section 12.03, as the case may be,
have been satisfied.
12.05 Deposited Money and Government Obligations to be Held in Trust; Other
Miscellaneous Provisions
Subject to the provisions of the last paragraph of Section9.06, all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee (collectively, for the purposes of this
Section 12.05, the "Trustee")) pursuant to Section 12.04 in respect of the
Securities of a particular series then Outstanding and the Coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and Coupons and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Securities and Coupons of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law. The Corporation shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 12.04 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 the Securities and the Coupons for
whose benefit such Government Obligations are held.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee
shall deliver or pay to the Corporation from time to time, upon Corporation
Request, any money or Government Obligations held by it as provided in
Section12.04 which, in the opinion of a nationally recognized firm of
independent chartered accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited for the purpose for which such money or Government
Obligations were deposited.
Article 13
Meetings of Holders
13.01 Purposes for which Meetings May be Called
A meeting of the Holders of the Securities of one or more series may be called
at any time and from time to time pursuant to the provisions of this Article for
one or more of the following purposes:
<PAGE>
(a) to give any notice to the Corporation or to the Trustee,
to give any directions to the Trustee, to consent to the
waiving of any Event of Default hereunder and its consequences
or to take any other action authorized to be taken by the
Holders of the Securities of such series pursuant to any of
the provisions of Article Five;
(b) to remove the Trustee and appoint a successor Trustee with
respect to the Securities of such series pursuant to the
provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section
8.02; or
(d) to take any other action required or permitted to be taken
by or on behalf of the Holders of any specified percentage of
the aggregate principal amount of the Securities of such
series under any other provision of this Indenture or under
applicable law.
13.02 Convening of Meetings
The Trustee or the Corporation may at any time and from time to time, and the
Trustee shall on requisition in writing made by the Corporation or by the
Holders of at least 25% of the aggregate principal amount of the Securities of
one or more series then Outstanding, convene a meeting of the Holders of the
Securities of such series to take any action specified in Section 13.01. In the
event of the Trustee failing to convene a meeting within 21 days after the
receipt of requisition made as aforesaid, the Corporation or the Holders of at
least 25% of the aggregate principal amount of the Securities of such series, as
the case may be, may convene such meeting. Every such meeting shall be held at
the City of Calgary, Alberta, Canada or at such other place as the Trustee may
approve.
13.03 Notice
Notice of every such meeting, 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 by the Trustee or, in the event of the Trustee failing to convene
a meeting specified in Section 13.02, by the Corporation or such Holders, not
less than 21 and not more than 120 days prior to the date fixed for such meeting
(i)if any Unregistered Securities of any affected series are then Outstanding,
to the Holders thereof by publication of such notice at least twice in an
Authorized Newspaper in such cities as the Trustee (or the Corporation or such
Holders, if applicable) shall deem appropriate under the circumstances, (ii)if
any Unregistered Securities of any
<PAGE>
affected series are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee by mailing such notice to such
Holders at such addresses and (iii)if any Registered Securities of any affected
series are then outstanding, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. A copy of the notice
shall be sent by prepaid registered mail to the Trustee unless the meeting has
been called by it and to the Corporation unless the meeting has been called by
it. A Holder of Securities may waive notice of a meeting either before or after
the meeting.
13.04 Persons Entitled to Vote, to be Present and to Speak at Meetings
To be entitled to vote at any meeting of the Holders of the Securities of one or
more series, a Person shall be (i)a Holder of one or more Securities of such
series or (ii)a Person appointed by an instrument in writing as proxy for a
Holder of one or more Securities of such series. The only Persons who shall be
entitled to be present or to speak at any such meeting shall be the Persons
entitled to vote at such meeting and their Counsel, any representatives of the
Trustee and its Counsel and any representatives of the Corporation and its
Counsel.
13.05 Determination of Voting Rights; Conduct and Adjournment of Meetings
(1) Notwithstanding any other provision of this Indenture, the Corporation, with
the approval of the Trustee, in case it convenes the meeting or the Trustee in
any other case may make such reasonable regulations as it may deem advisable for
any meeting of the Holders of the Securities of one or more series in regard to
(i)the proof of the holding of the Securities of such series, (ii)the
appointment of proxies, (iii)the appointment and duties of inspectors of votes,
(iv)the submission and examination of proxies and other evidence of the right to
vote and (v)such other matters concerning the conduct of such meeting as it
shall deem necessary or appropriate. Except as otherwise permitted or required
by any such regulation, the holding of the Securities of such series and the
appointment of any proxy shall be proved in the manner specified in Section
1.04.
(2) The Trustee shall, by an instrument in writing, appoint a chairman and
secretary of such meeting, unless the meeting shall have been convened by the
Corporation or by Holders as provided in Section 13.02, in which case the
Corporation or such Holders, as the case may be, shall in like manner appoint a
chairman and secretary.
(3) At any such meeting, each Holder of the Securities of such series or the
proxy therefor shall be entitled to one vote for each $1,000 principal amount of
the
<PAGE>
Securities of such series held or represented by such Holder or proxy; provided,
however, that no vote shall be cast or counted at any such meeting in respect of
any Security of such series challenged as not Outstanding and ruled by the
permanent chairman of such meeting to be not Outstanding. No chairman of such
meeting shall have any right to vote thereat, except as a Holder of the
Securities of such series or as a proxy therefor.
(4) At any such meeting duly called pursuant to the provisions of Section13.02,
the presence of Persons holding or representing Securities of the affected
series in an aggregate principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum; but if less than a quorum shall be present, such meeting may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Securities of such series represented and entitled to vote at such
meeting, and any such adjourned meeting may be held without further notice.
13.06 Manner of Voting; Recording of Action
The vote upon any resolution submitted to any meeting of the Holders of the
Securities of one or more series shall be by written ballots on which shall be
subscribed the signatures of such Holders or their duly authorized proxies and
the principal amount or amounts of the Securities represented thereby. The
permanent chairman of such meeting shall appoint two inspectors of votes, who
shall count all votes cast at such meeting for or against any resolution and
shall make and file with the permanent secretary of such meeting their verified
written report, in duplicate, of all votes cast at such meeting. A record, in
duplicate, of the proceedings of such meeting shall be prepared by the permanent
secretary of such meeting, and there shall be attached to such record (i)such
report of the inspectors of votes and (ii)affidavits by one or more persons,
having knowledge of the facts, setting forth a copy of the notice of such
meeting and showing that such notice was given as provided in Section13.02. Such
record shall be signed and verified by the affidavits of the permanent chairman
and the permanent secretary of such meeting. One of such duplicate records shall
be delivered to the Corporation and the other shall be delivered to the Trustee,
to be preserved by the Trustee, the latter having attached thereto the ballots
voted at such meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
13.07 Instrument in Lieu of Resolution
Notwithstanding the foregoing provisions of this Indenture, any resolution or
instrument signed in one or more counterparts by or on behalf of the Holders of
the specified percentage of the aggregate principal amount of the Securities of
any
<PAGE>
series shall have the same force and effect as a resolution passed by the
Holders of such specified percentage at a meeting of the Holders of Securities
of such series.
13.08 Evidence of Instruments of Holders
Any request, direction, notice, consent or other instrument which this Indenture
may require or permit to be signed or executed by the Holders of Securities may
be in any number of concurrent instruments of similar tenor signed or executed
by such Holders.
The Trustee may, in its discretion, require proof of execution in cases where it
deems proof desirable and may accept such proof as it shall consider proper.
13.09 Binding Effect of Resolutions
Every resolution passed by the Holders of the specified percentage at a meeting
of the Holders of Securities of one or more series held in accordance with the
provisions herein contained shall be binding upon all the Holders of Securities
of such series, whether present at or absent from such meeting, and every
instrument in writing signed by Holders of the specified percentage of
Securities of one or more series in accordance with Section 13.07 shall be
binding upon all the Holders of Securities of such series, whether signatories
thereto or not, and each and every Holder of Securities of such series and the
Trustee (subject to the provisions for its indemnity herein contained) shall be
bound to give effect thereto accordingly.
13.10 No Delay of Rights
Nothing in this Article contained shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of the Holders of the Securities of
one or more series, or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders of the Securities of
such series under any of the provisions of this Indenture or of the Securities
of such series.
In witness whereof the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed, all as of
the day and year first above written.
NORCEN ENERGY RESOURCES LIMITED
<PAGE>
By: (signed)
----------------------------------
E.A. Leew
Vice President, Legal & Secretary
By: (signed)
----------------------------------
Robert J. Waters
Treasurer
(Corporate Seal)
MONTREAL TRUST COMPANY OF CANADA
By: (signed)
----------------------------------
Bradley Loughton
Senior Corporate Trust Officer
By: (signed)
----------------------------------
Laura Leong
Corporate Trust Officer
(Corporate Seal)
Table of Contents
Article 1
Definitions and Other Provisions of General Application
1.01 Definitions
1.02 Compliance Certificates and Opinions
1.03 Form of Documents Delivered to Trustee
1.04 Acts of Holders
1.05 Notices, Etc. to Trustee
1.06 Notices, Etc. to Corporation
1.07 Notice to Holders; Waiver
1.08 Effect of Headings and Table of Contents
1.09 Successors and Assigns
1.10 Separability Clause
1.11 Benefits of Indenture
1.12 Governing Law
1.13 Language Clause
1.14 Legal Holidays
1.15 Counterparts
<PAGE>
1.16 Securities in a Foreign Currency or in ECU
1.17 Judgment Currency
1.18 Agent for Process
1.19 Exemptions from Individual Liability
Article 2
Security Forms
2.01 Forms Generally
2.02 Form of Trustee's Certificate of Authentication
Article 3
The Securities
3.01 Amount Unlimited; Issuable in Series
3.02 Execution, Authentication and Delivery
3.03 Denomination and Date of Securities
3.04 Temporary Securities
3.05 Registration, Transfer and Exchange
3.06 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
3.07 Payment; Interest Rights Preserved
3.08 Persons Deemed Owners
3.09 Cancellation
3.10 Computation of Interest
Article 4
Satisfaction and Discharge
4.01 Satisfaction and Discharge of Indenture
4.02 Application of Trust Money
Article 5
Remedies
5.01 Event of Default
5.02 Acceleration of Maturity
5.03 Waiver of Default
5.04 Enforcement of Payment of Trustee
5.05 Trustee May File Proofs of Claim
5.06 Trustee May Enforce Claims without Possession of Securities
5.07 Application of Moneys Collected
5.08 Limitation on Suits
5.09 Unconditional Right of Holders to Receive Principal,
Premium and Interest
5.10 Restoration of Rights and Remedies
5.11 Rights and Remedies Cumulative
5.12 Delay or Omission Not Waiver
5.13 Control by Holders
5.14 Waiver of Past Defaults
<PAGE>
5.15 Undertaking for Costs
5.16 Waiver of Usury, Stay or Extension Laws
Article 6
The Trustee
6.01 Certain Duties and Responsibilities
6.02 Certain Rights of Trustee
6.03 Protection of Trustee
6.04 Trustee Not Required to Give Security
6.05 No Person Dealing with Trustee Need Enquire
6.06 May Hold Securities
6.07 Moneys Held in Trust
6.08 Conflict of Interest
6.09 Corporate Trustee Required; Eligibility
6.10 Resignation and Removal; Appointment of Successor
6.11 Acceptance of Appointment by Successor
6.12 Merger, Consolidation, Amalgamation or Succession to Business
6.13 Appointment of Authenticating Agent
6.14 Environmental Indemnity
Article 7
Consolidation, Merger, Amalgamation, Sale Or Transfer
7.01 Successor Corporation
7.02 Successor to Possess Powers of the Corporation
Article 8
Supplemental Indentures
8.01 Supplemental Indentures Without Consent of Holders
8.02 Supplemental Indentures With Consent of Holders
8.03 Execution of Supplemental Indentures
8.04 Effect of Supplemental Indentures
8.05 Reference in Securities to Supplemental Indentures
Article 9
Covenants of the Corporation
9.01 General Covenants
9.02 Trustee May Perform Covenants
9.03 Certificates of Compliance
9.04 Financial Statements
9.05 Maintenance of Office or Agency
9.06 Money for Securities Payments to Be Held in Trust
9.07 Maintenance of Corporate Existence
9.08 Payment of Taxes and Other Claims
Article 10
<PAGE>
Redemption of Securities
10.01 Applicability of Article
10.02 Election to Redeem; Notice to Trustee
10.03 Selection by Trustee of Securities to be Redeemed
10.04 Notice of Redemption
10.05 Deposit of Redemption Price
10.06 Securities Payable on Redemption Date
10.07 Securities Redeemed in Part
Article 11
Sinking Funds
11.01 Applicability of Article
11.02 Satisfaction of Sinking Fund Payments with Securities
11.03 Redemption of Securities for Sinking Fund
Article 12
Defeasance and Covenant Defeasance
12.01 Corporation's Option to Effect Defeasance
12.02 Defeasance and Discharge
12.03 Covenant Defeasance
12.04 Conditions to Defeasance or Covenant Defeasance
12.05 Deposited Money and Government Obligations to
be Held in Trust; Other Miscellaneous Provisions
Article 13
Meetings of Holders
13.01 Purposes for which Meetings May be Called
13.02 Convening of Meetings
13.03 Notice
13.04 Persons Entitled to Vote, to be Present and to Speak
at Meetings
13.05 Determination of Voting Rights; Conduct and Adjournment of
Meetings
13.06 Manner of Voting; Recording of Action
13.07 Instrument in Lieu of Resolution
13.08 Evidence of Instruments of Holders
13.09 Binding Effect of Resolutions
13.10 No Delay of Rights
<PAGE>
NORCEN ENERGY RESOURCES LIMITED
And
MONTREAL TRUST COMPANY OF CANADA
Trustee
First Supplemental Indenture
Dated as of May 22, 1996
to
Trust Indenture
Dated as of May 7, 1996
providing for the issue of
7 3/8% Debentures due May 15, 2006
in aggregate principal amount of
U.S. $250,000,000
First Supplemental Indenture
May 22, 1996
Between
NORCEN ENERGY RESOURCES LIMITED , a corporation incorporated
under the laws of Canada, and having its registered office at
the City of Calgary in the Province of Alberta, Canada (the
"Corporation"),
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada and duly authorized to carry on the
trust business in each province of Canada (the "Trustee")
<PAGE>
Whereas by a trust indenture (hereinafter referred to as the "Original
Indenture") made as of May 7, 1996 between the Corporation and the Trustee
provision was made for the issue of Securities of the Corporation in one or more
series; and
Whereas under and in accordance with the terms of the Original Indenture there
have not heretofore been issued any Securities; and
Whereas the Original Indenture provides that the aggregate principal amount of
Securities which may be issued thereunder is unlimited but Securities may be
issued only upon and subject to the conditions and limitations set forth
therein; and
Whereas the Corporation desires to issue the first series of Securities having
the attributes and characteristics hereinafter set forth; and
Whereas the Corporation is not in default under the Original Indenture; and
Whereas all necessary acts and proceedings have been done and taken and all
necessary resolutions passed to authorize the execution and delivery of this
First Supplemental Indenture and to make the same legal and valid and binding
upon the Corporation; and
Whereas the foregoing recitals are made as representations and statements of
fact by the Corporation and not by the Trustee;
Now Therefore This First Supplemental Indenture Witnesses that, in consideration
of the premises and the covenants herein contained, the parties hereto agree as
follows:
Article 1
Definitions And Other Provisions
Of General Application
1.01 Definitions
For all purposes of this First Supplemental Indenture and in the Series 1
Debentures, except as otherwise expressly provided or unless the subject matter
or context otherwise requires:
"7 3/8% Debentures due May 15, 2006" means the series of Securities
created by the Corporation to be authenticated and delivered pursuant
to the terms of this First Supplemental Indenture and herein sometimes
referred to as the "Series 1 Debentures";
<PAGE>
"First Supplemental Indenture", "hereto", "herein", "hereof", "hereby",
"hereunder" and similar expressions refer to this First Supplemental
Indenture made as of May 22, 1996 and not to any particular Article,
Section or other portion thereof, and include any and every instrument
supplemental or ancillary hereto or in implement hereof, and the
expressions "Article" and "Section" followed by a number mean and refer
to the specified Article or Section of this First Supplemental
Indenture;
"Original Indenture" means the trust indenture made as of May 7,1996
between the Corporation and the Trustee;
"Trust Indenture" means the Original Indenture as supplemented by this
First Supplemental Indenture and any other indenture, deed or
instrument supplemental or ancillary thereto; and other terms and
expressions used herein shall have the same meanings as corresponding
expressions defined in the Original Indenture.
1.02 Schedules
The following Schedule forms part of this First Supplemental Indenture:
Schedule A - Form of Series 1 Debenture
1.03 Notice to Holders
Where the Trust Indenture or any Series 1 Debenture requires or permits the
Corporation or the Trustee to give to the Holders of Series 1 Debentures notice
by publication in an Authorized Newspaper, such notice is hereby required to be
published in an Authorized Newspaper in The City of New York.
1.04 To be Read with Original Indenture
This First Supplemental Indenture is a supplemental indenture within the meaning
of the Original Indenture and the Original Indenture and this First Supplemental
Indenture shall be read together and shall have effect, so far as practicable,
as though all the provisions of the Original Indenture and this First
Supplemental Indenture were contained in one instrument.
Article 2
Series 1 Debentures
2.01 Designation
<PAGE>
There is hereby authorized to be issued under the Trust Indenture a series of
Securities designated as "7 3/8% Debentures due May 15, 2006".
2.02 Limit of Aggregate Principal Amount
The aggregate principal amount of Series 1 Debentures that may be authenticated
and delivered (subject to the exceptions described in Section 3.01(b) of the
Original Indenture) shall be limited to U.S. $250,000,000 .
2.03 Currency of Denomination
The Series 1 Debentures shall be denominated in U.S. Dollars.
2.04 Dates of Issue and Payment of Principal
The date of issue of the Series 1 Debentures shall be May 29, 1996 and the
principal of the Series 1 Debentures shall be payable on May 15, 2006.
2.05 Interest
(1) The Series 1 Debentures shall bear interest at the rate of 7 3/8% per
annum.
(2) Interest in respect of the Series 1 Debentures shall accrue from May
15, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for.
(3) The Interest Payment Dates on which interest shall be payable in
respect of the Series 1 Debentures shall be May 15 and November 15 in
each year, commencing November 15, 1996.
(4) The Regular Record Dates for interest in respect of the Series 1
Debentures shall be May 1 and November 1 (whether or not a Business
Day) in respect of the interest payable on May 15 and November 15,
respectively.
2.06 Payments
(1) The principal of and interest on the Series 1 Debentures that are
issued in the form of Registered Global Securities and registered in
the name of the nominee of the Depository shall be payable by wire
transfer in immediately available funds to the nominee of the
Depository.
(2) The principal of the Series 1 Debentures that are issued in definitive
form shall be payable at the Corporate Trust Office and interest on
such Series 1 Debentures shall be payable at the Corporate Trust Office
or otherwise as
<PAGE>
the Corporation may determine in accordance with Section 3.07(2) of the
Original Indenture, in each case in immediately available funds.
2.07 Redemption
The Series 1 Debentures are not redeemable prior to maturity but the Corporation
retains the right, at any time and from time to time, to purchase Series 1
Debentures in the open market or otherwise by such method and at such price or
prices as shall be determined by the Corporation.
2.08 Sinking Fund
The Series 1 Debentures are not subject to redemption pursuant to any sinking
fund.
2.09 Form and Denominations
The Series 1 Debentures shall be issuable as Registered Securities, initially as
Registered Global Securities, in denominations of US $1000 or any integral
multiple thereof, and shall be substantially in the form set forth on Schedule A
hereto.
2.10 Additional Amounts
The Corporation shall not be required to pay any additional amount on the Series
1 Debentures in respect of any tax, assessment or governmental charge withheld
or deducted.
2.11 Trustee, etc.
The trustee, authenticating agent, paying agent, transfer agent and the
registrar for the Series 1 Debentures shall be the Trustee.
2.12 Depository
The Depository for the Series 1 Debentures shall be The Depository Trust
Company, 55 Water Street, New York, New York 10004 U.S.A.
2.13 Additional Events of Default or Covenants
<PAGE>
There are no additional events of default or covenants with respect to the
Series 1 Debentures, but all Events of Default and covenants specified in the
Original Indenture shall be applicable thereto.
Article 3
Miscellaneous Provisions
3.01 Confirmation of Original Indenture
The Original Indenture, as amended and supplemented by this First Supplemental
Indenture, is in all respects confirmed.
3.02 Acceptance of Trusts
The Trustee hereby accepts the trusts in this First Supplemental Indenture
declared and provided for and agrees to perform the same upon the terms and
conditions and subject to the provisions set forth in the Original Indenture as
supplemented by this First Supplemental Indenture.
3.03 Counterparts and Formal Date
This First Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original; but and all such
counterparts together shall constitute but one and the same instrument. IN
WITNESS WHEREOF the parties hereto have caused this First Supplemental Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
NORCEN ENERGY RESOURCES LIMITED
By: (signed)
--------------------------------
E.A. Leew
Vice President, Legal & Secretary
By: (signed)
--------------------------------
Robert J. Waters
Treasurer
MONTREAL TRUST COMPANY OF CANADA
<PAGE>
By: (signed)
--------------------------------
Name: Bradley Loughton
Title: Senior Corporate Trust
Officer
By: (signed)
--------------------------------
Name: Laura Leong
Title: Corporate Trust Officer
<PAGE>
Schedule A
to
First Supplemental Indenture
REGISTERED No. R REGISTERED U.S. $ CUSIP: 655492AF3
[INSERT IF THE SECURITY IS TO BE A REGISTERED GLOBAL SECURITY] - This Security
is a Registered Global Security within the meaning of the Trust Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Registered Global Security is exchangeable for
Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Trust Indenture, and
no transfer of this Security (other than a transfer of this Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository) may be registered except in such limited circumstances.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the
Corporation (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
NORCEN ENERGY RESOURCES LIMITED.
7 3/8% DEBENTURE DUE May 15, 2006
NORCEN ENERGY RESOURCES LIMITED, a corporation incorporated under the laws of
Canada (together with its successors and assigns, the
<PAGE>
"Corporation"), for value received, hereby promises to pay to
_______________________ the principal sum of United States Dollars (U.S.$),
on May 15, 2006 and to pay interest thereon at the rate of 7 3/8% per annum from
May 15, 1996 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on May 15 and November
15 in each year (each such date an "Interest Payment Date") commencing November
15, 1996 until the principal hereof is paid or duly made available for payment.
The interest so payable on any Interest Payment Date shall, subject to certain
exceptions, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which shall
be May 1 or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date to be
fixed by the Trustee for the payment of such Defaulted Interest, notice whereof
shall be given to the Holder not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Series 1 Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Trust Indenture (as defined below).
Payment of the principal of and the interest due on the Series 1 Debentures
represented by this Security that are issued in the form of Registered Global
Securities and registered in the name of the nominee of the Depository shall be
made by wire transfer in immediately available funds to the nominee of the
Depository. Payment of the principal of and the interest due on the Series 1
Debentures represented by this Security that are issued in definitive form will
be made at the Corporate Trust Office (as defined below) in immediately
available funds. Payment of the principal of and interest on the Series 1
Debentures represented by this Security will be made in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
This Security is one of a series of Securities designated as the 7 3/8%
Debentures due May 15, 2006 of the Corporation (the "Series 1 Debentures"),
limited in aggregate principal amount to U.S.$250,000,000, issued or to be
issued under and pursuant to a trust indenture made as of May 7, 1996 (the
"Original Indenture"), between the Corporation and Montreal Trust Company of
Canada, as trustee (the "Trustee", which term includes any successor trustee
under the Trust Indenture), as
<PAGE>
supplemented by the First Supplemental Indenture made as of May 22, 1996 (the
"First Supplemental Indenture") between the Corporation and the Trustee, to
which Original Indenture, First Supplemental Indenture and all indentures
supplemental thereto (herein collectively referred to as the "Trust Indenture")
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Corporation, the Trustee and Holders of
the Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. The "Corporate Trust Office" means the office of
the Trustee at which its corporate trust business in Calgary, Alberta, Canada,
at any particular time, shall be principally administered, which office at the
date of the First Supplemental Indenture was located at 710, 530 - 8th Ave.
S.W., Calgary, Alberta, Canada T2P 3S8.
The Series 1 Debentures shall not be redeemable prior to Maturity and shall not
be subject to any sinking fund but are subject to defeasance and covenant
defeasance at the option of the Corporation upon compliance with certain
conditions set forth in the Trust Indenture.
The Trustee has been appointed registrar for the Series 1 Debentures, and the
Trustee will maintain at the Corporate Trust Office a register for the
registration and transfer of Series 1 Debentures. Subject to the limitations,
terms and conditions set forth herein and in the Trust Indenture, this Security
may be transferred at the aforesaid office of the Trustee by surrendering this
Security for cancellation, and thereupon the Trustee shall issue in the name of
the transferee or transferees, in exchange herefor, one or more new Securities
of like tenor and terms in authorized denominations for a like aggregate
principal amount. Upon the occurrence of certain events specified in Section
3.05 of the Original Indenture, this Security is exchangeable at the said office
of the Trustee for Series 1 Debentures represented by definitive registered
Debentures without coupons in authorized denominations in an equal aggregate
principal amount and having like tenor and terms as the surrendered Security.
Each Security surrendered for transfer or exchange shall be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation and the Trustee and duly executed by, the
registered Holder or the Holder's attorney duly authorized in writing. The
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such transfer or
exchange; but no service charge shall be made for any such transfer or exchange.
The Securities of this series may be issued in the form of one or more
Registered Global Securities to The Depository Trust Company as depository for
the Registered Global Securities of this series (the "Depository") or its
nominee and
<PAGE>
registered in the name of the Depository or such nominee. If the face of this
Security contains a legend indicating that this Security is a Registered Global
Security so registered, the transfer and exchange hereof is subject to the
additional limitations set forth in such legend, and the Trust Indenture
provides that unless and until a Registered Global Security is exchanged in
whole or in part for Securities in definitive registered form, a Registered
Global Security may not be transferred except as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
In case an Event of Default with respect to the Series 1 Debentures shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Trust Indenture.
The Trust Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Trust Indenture at any time by the Corporation and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Trust Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Series 1 Debentures then
Outstanding, on behalf of the Holders of all Series 1 Debentures, to waive
compliance by the Corporation with certain provisions of the Trust Indenture and
certain past defaults under the Trust Indenture and their consequences.
As provided in and subject to the provisions of the Trust Indenture, no Holder
of Series 1 Debentures shall have any right to institute any proceeding with
respect to the Trust Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless (a) such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Series 1 Debentures and the Holders of not less than 25% in
aggregate principal amount of the Series 1 Debentures then Outstanding shall
have made written request to the Trustee to institute such proceeding in respect
of such Event of Default as Trustee and offered the Trustee reasonable indemnity
and (b) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Series 1 Debentures then Outstanding a direction
inconsistent with such request, and (c) the Trustee shall have failed to
institute any such proceeding, within 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by a Holder of Series 1 Debentures for the enforcement
<PAGE>
of any payment of principal hereof or interest hereon on or after the respective
due dates expressed herein.
No provision of this Security or of the Trust Indenture shall alter or impair
the obligation of the Corporation, which is absolute and unconditional, to pay
the principal of and interest on the Series 1 Debentures represented by this
Security at the time, place, and rate, and in the coin and currency, herein
prescribed. The Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not payment in respect of this
Security be overdue, and none of the Corporation, the Trustee or any such agent
shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the laws of
the State of New York and the federal laws of the United States of America
applicable thereto and shall be treated in all respects as a New York contract,
except as may be otherwise required by mandatory provisions of law.
Notwithstanding the preceding sentence, the exercise, performance or discharge
by the Trustee of any of its rights, powers, duties or responsibilities
hereunder shall be construed in accordance with the laws of the Province of
Alberta and the federal laws of Canada applicable thereto.
All terms used in this Security which are defined in the Trust Indenture and not
otherwise defined herein shall have the meanings assigned to them in the Trust
Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee
by manual signature, this Security shall not be entitled to any benefit under
the Trust Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF the Corporation has caused this Security to be duly executed.
DATE OF ISSUE: May 29, 1996 NORCEN ENERGY RESOURCES LIMITED
By:
--------------------------------
Title:
By:
<PAGE> --------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is a Security representing Series 1 Debentures referred to in the
within-mentioned Trust Indenture.
MONTREAL TRUST COMPANY OF CANADA,
as Trustee
By:
--------------------------------
Authorized Officer
Date of Authentication:
--------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ---------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF TRANSFEREE]
the within Security, and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer such security on the books of the
Corporation, with full power of substitution in the premises.
Dated:
-------------------------------------
Signature of Transferor:
-------------------------------------
Signature of Transferor is Guaranteed by:
-------------------------------------
NOTICE: The signature to this assignment and transfer must correspond
with the name as written upon the face of the within Security
in every particular without alteration or enlargement or any
change whatsoever.
<PAGE>
NORCEN ENERGY RESOURCES LIMITED
And
MONTREAL TRUST COMPANY OF CANADA
Trustee
Second Supplemental Indenture
Dated as of June 26, 1996
to
Trust Indenture
Dated as of May 7, 1996
providing for the issue of
7.80% Debentures due July 2, 2008
in aggregate principal amount of
U.S. $150,000,000
Second Supplemental Indenture
June 26, 1996
Between
NORCEN ENERGY RESOURCES LIMITED, a corporation incorporated
under the laws of Canada, and having its registered office at
the City of Calgary in the Province of Alberta, Canada (the
"Corporation"),
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada and duly authorized to carry on the
trust business in each province of Canada (the "Trustee")
<PAGE>
Whereas by a trust indenture (hereinafter referred to as the "Original
Indenture") made as of May 7, 1996 between the Corporation and the Trustee
provision was made for the issue of Securities of the Corporation in one or more
series; and
Whereas under and in accordance with the terms of the Original Indenture, as
supplemented and amended by a first supplemental indenture made as of May 22,
1996, there have heretofore been issued one series of Securities; and
Whereas the Original Indenture provides that the aggregate principal amount of
Securities which may be issued thereunder is unlimited but Securities may be
issued only upon and subject to the conditions and limitations set forth
therein; and
Whereas the Corporation desires to issue the second series of Securities having
the attributes and characteristics hereinafter set forth; and
Whereas the Corporation is not in default under the Original Indenture; and
Whereas all necessary acts and proceedings have been done and taken and all
necessary resolutions passed to authorize the execution and delivery of this
Second Supplemental Indenture and to make the same legal and valid and binding
upon the Corporation; and
Whereas the foregoing recitals are made as representations and statements of
fact by the Corporation and not by the Trustee;
Now Therefore This Second Supplemental Indenture Witnesses that, in
consideration of the premises and the covenants herein contained, the parties
hereto agree as follows:
Article 1
Definitions And Other Provisions
Of General Application
1.01 Definitions
For all purposes of this Second Supplemental Indenture and in the Series 2
Debentures, except as otherwise expressly provided or unless the subject matter
or context otherwise requires:
"7.80% Debentures due July 2, 2008 " means the series of Securities
created by the Corporation to be authenticated and delivered pursuant
to the
<PAGE>
terms of this Second Supplemental Indenture and herein sometimes
referred to as the "Series 2 Debentures";
"First Supplemental Indenture" means the first supplemental indenture
made as of May 22, 1996 between the Corporation and the Trustee in
supplement to the Original Indenture;
"Original Indenture" means the trust indenture made as of May 7, 1996
between the Corporation and the Trustee;
"Second Supplemental Indenture", "hereto", "herein", "hereof",
"hereby", "hereunder" and similar expressions refer to this Second
Supplemental Indenture made as of June 26, 1996 and not to any
particular Article, Section or other portion thereof, and include any
and every instrument supplemental or ancillary hereto or in implement
hereof, and the expressions "Article" and "Section" followed by a
number mean and refer to the specified Article or Section of this
Second Supplemental Indenture;
"Trust Indenture" means the Original Indenture, as supplemented by the
First Supplemental Indenture and this Second Supplemental Indenture and
any other indenture, deed or instrument supplemental or ancillary
thereto; and
other terms and expressions used herein shall have the same meanings as
corresponding expressions defined in the Original Indenture.
1.02 Schedules
The following Schedule forms part of this Second Supplemental Indenture:
Schedule A - Form of Series 2 Debenture
1.03 Notice to Holders
Where the Trust Indenture or any Series 2 Debenture requires or permits the
Corporation or the Trustee to give to the Holders of Series 2 Debentures notice
by publication in an Authorized Newspaper, such notice is hereby required to be
published in an Authorized Newspaper in The City of New York.
1.04 To be Read with Original Indenture
<PAGE>
This Second Supplemental Indenture is a supplemental indenture within the
meaning of the Original Indenture and the Original Indenture and this Second
Supplemental Indenture shall be read together and shall have effect, so far as
practicable, as though all the provisions of the Original Indenture and this
Second Supplemental Indenture were contained in one instrument.
Article 2
Series 2 Debentures
2.01 Designation
There is hereby authorized to be issued under the Trust Indenture a series of
Securities designated as "7.80% Debentures due July 2, 2008".
2.02 Limit of Aggregate Principal Amount
The aggregate principal amount of Series 2 Debentures that may be authenticated
and delivered (subject to the exceptions described in Section 3.01(b) of the
Original Indenture) shall be limited to U.S. $150,000,000.
2.03 Currency of Denomination
The Series 2 Debentures shall be denominated in U.S. Dollars.
2.04 Dates of Issue and Payment of Principal
The date of issue of the Series 2 Debentures shall be July 2, 1996 and the
principal of the Series 2 Debentures shall be payable on July 2, 2008.
2.05 Interest
(1) The Series 2 Debentures shall bear interest at the rate of 7.80% per
annum.
(2) Interest in respect of the Series 2 Debentures shall accrue from July
2, 1996 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for.
(3) The Interest Payment Dates on which interest shall be payable in
respect of the Series 2 Debentures shall be January 2 and July 2 in
each year, commencing January 2, 1997.
<PAGE>
(4) The Regular Record Dates for interest in respect of the Series 2
Debentures shall be December 15 and June 15 (whether or not a Business
Day) in respect of the interest payable on January 2 and July 2,
respectively.
2.06 Payments
(1) The principal of and interest on the Series 2 Debentures that are
issued in the form of Registered Global Securities and registered in
the name of the nominee of the Depository shall be payable by wire
transfer in immediately available funds to the nominee of the
Depository.
(2) The principal of the Series 2 Debentures that are issued in definitive
form shall be payable at the Corporate Trust Office and interest on
such Series 2 Debentures shall be payable at the Corporate Trust Office
or otherwise as the Corporation may determine in accordance with
Section 3.07(2) of the Original Indenture, in each case in immediately
available funds.
2.07 Redemption
The Series 2 Debentures are not redeemable prior to maturity but the Corporation
retains the right, at any time and from time to time, to purchase Series 2
Debentures in the open market or otherwise by such method and at such price or
prices as shall be determined by the Corporation.
2.08 Sinking Fund
The Series 2 Debentures are not subject to redemption pursuant to any sinking
fund.
2.09 Form and Denominations
The Series 2 Debentures shall be issuable as Registered Securities, initially as
Registered Global Securities, in denominations of US $1000 or any integral
multiple thereof, and shall be substantially in the form set forth on Schedule A
hereto.
2.10 Additional Amounts
The Corporation shall not be required to pay any additional amount on the Series
2 Debentures in respect of any tax, assessment or governmental charge withheld
or deducted.
<PAGE>
2.11 Trustee, etc.
The trustee, authenticating agent, paying agent, transfer agent and the
registrar for the Series 2 Debentures shall be the Trustee.
2.12 Depository
The Depository for the Series 2 Debentures shall be The Depository Trust
Company, 55 Water Street, New York, New York 10004 U.S.A.
2.13 Additional Events of Default or Covenants
There are no additional events of default or covenants with respect to the
Series 2 Debentures, but all Events of Default and covenants specified in the
Original Indenture shall be applicable thereto.
Article 3
Miscellaneous Provisions
3.01 Confirmation of Original Indenture
The Original Indenture, as amended and supplemented by this Second Supplemental
Indenture, is in all respects confirmed.
3.02 Acceptance of Trusts
The Trustee hereby accepts the trusts in this Second Supplemental Indenture
declared and provided for and agrees to perform the same upon the terms and
conditions and subject to the provisions set forth in the Original Indenture as
supplemented by this Second Supplemental Indenture.
3.03 Counterparts and Formal Date
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
and all such counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
<PAGE>
NORCEN ENERGY RESOURCES LIMITED
By: (signed)
--------------------------------------
E.A. Leew
Vice President, Legal & Secretary
By: (signed)
--------------------------------------
Robert J. Waters
Treasurer
MONTREAL TRUST COMPANY OF CANADA
By: (signed)
--------------------------------------
Name: Bradley Loughton
Title: Senior Corporate Trust Officer
By: (signed)
--------------------------------------
Name: Laura Leong
Title: Corporate Trust Officer
Schedule A
to
Second Supplemental Indenture
REGISTERED No. R REGISTERED U.S. $ CUSIP: 655492 AG 1
[INSERT IF THE SECURITY IS TO BE A REGISTERED GLOBAL SECURITY] - This Security
is a Registered Global Security within the meaning of the Trust Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Registered Global Security is exchangeable for
Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Trust Indenture, and
no transfer of this Security (other than a transfer of this Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository) may be registered except in such limited circumstances.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the
Corporation (as defined below) or its agent for registration of transfer,
exchange or
<PAGE>
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
NORCEN ENERGY RESOURCES LIMITED.
7.80% DEBENTURES DUE July 2, 2008
NORCEN ENERGY RESOURCES LIMITED, a corporation incorporated under the laws of
Canada (together with its successors and assigns, the "Corporation"), for value
received, hereby promises to pay to _______________________ the principal sum of
United States Dollars (U.S.$), on July 2, 2008 and to pay interest thereon at
the rate of 7.80% per annum from July 2, 1996 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on January 2 and July 2 in each year (each such date an "Interest
Payment Date") commencing January 2, 1997 until the principal hereof is paid or
duly made available for payment.
The interest so payable on any Interest Payment Date shall, subject to certain
exceptions, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which shall
be December 15 or June 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date to be
fixed by the Trustee for the payment of such Defaulted Interest, notice whereof
shall be given to the Holder not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Series 2 Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Trust Indenture (as defined below).
Payment of the principal of and the interest due on the Series 2 Debentures
represented by this Security that are issued in the form of Registered Global
Securities and registered in the name of the nominee of the Depository shall be
made by wire transfer in immediately available funds to the nominee of the
Depository. Payment of the principal of and the interest due on the Series 2
Debentures represented by this Security that are issued in definitive form will
be
<PAGE>
made at the Corporate Trust Office (as defined below) in immediately available
funds. Payment of the principal of and interest on the Series 2 Debentures
represented by this Security will be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
This Security is one of a series of Securities designated as the 7.80%
Debentures due July 2, 2008 of the Corporation (the "Series 2 Debentures"),
limited in aggregate principal amount to U.S.$150,000,000, issued or to be
issued under and pursuant to a trust indenture made as of May 7, 1996 (the
"Original Indenture"), between the Corporation and Montreal Trust Company of
Canada, as trustee (the "Trustee", which term includes any successor trustee
under the Trust Indenture), as supplemented by the First Supplemental Indenture
made as of May 22, 1996 (the "First Supplemental Indenture") between the
Corporation and the Trustee, as supplemented by the Second Supplemental
Indenture made as of June 26, 1996 (the "Second Supplemental Indenture") between
the Corporation and the Trustee, to which Original Indenture, First Supplemental
Indenture, Second Supplemental Indenture and all indentures supplemental thereto
(herein collectively referred to as the "Trust Indenture") reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities of the Corporation, the Trustee and Holders of the Securities and the
terms upon which the Securities are, and are to be, authenticated and delivered.
The "Corporate Trust Office" means the office of the Trustee at which its
corporate trust business in Calgary, Alberta, Canada, at any particular time,
shall be principally administered, which office at the date of the Second
Supplemental Indenture was located at 710, 530 - 8th Ave. S.W., Calgary,
Alberta, Canada T2P 3S8.
The Series 2 Debentures shall not be redeemable prior to Maturity and shall not
be subject to any sinking fund but are subject to defeasance and covenant
defeasance at the option of the Corporation upon compliance with certain
conditions set forth in the Trust Indenture.
The Trustee has been appointed registrar for the Series 2 Debentures, and the
Trustee will maintain at the Corporate Trust Office a register for the
registration and transfer of Series 2 Debentures. Subject to the limitations,
terms and conditions set forth herein and in the Trust Indenture, this Security
may be transferred at the aforesaid office of the Trustee by surrendering this
Security for cancellation, and thereupon the Trustee shall issue in the name of
the transferee or transferees, in exchange herefor, one or more new Securities
of like tenor and terms in authorized denominations for a like aggregate
principal amount. Upon the occurrence of certain events specified in Section
3.05 of the Original Indenture, this Security is exchangeable at the said office
of the Trustee for Series 2
<PAGE>
Debentures represented by definitive registered Debentures without coupons in
authorized denominations in an equal aggregate principal amount and having like
tenor and terms as the surrendered Security. Each Security surrendered for
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Trustee and duly executed by, the registered Holder or the Holder's
attorney duly authorized in writing. The Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such transfer or exchange; but no service charge shall be
made for any such transfer or exchange.
The Securities of this series may be issued in the form of one or more
Registered Global Securities to The Depository Trust Company as depository for
the Registered Global Securities of this series (the "Depository") or its
nominee and registered in the name of the Depository or such nominee. If the
face of this Security contains a legend indicating that this Security is a
Registered Global Security so registered, the transfer and exchange hereof is
subject to the additional limitations set forth in such legend, and the Trust
Indenture provides that unless and until a Registered Global Security is
exchanged in whole or in part for Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository.
In case an Event of Default with respect to the Series 2 Debentures shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Trust Indenture.
The Trust Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Trust Indenture at any time by the Corporation and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Trust Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Series 2 Debentures then
Outstanding, on behalf of the Holders of all Series 2 Debentures, to waive
compliance by the Corporation with certain provisions of the Trust Indenture and
certain past defaults under the Trust Indenture and their consequences.
<PAGE>
As provided in and subject to the provisions of the Trust Indenture, no Holder
of Series 2 Debentures shall have any right to institute any proceeding with
respect to the Trust Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless (a) such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Series 2 Debentures and the Holders of not less than 25% in
aggregate principal amount of the Series 2 Debentures then Outstanding shall
have made written request to the Trustee to institute such proceeding in respect
of such Event of Default as Trustee and offered the Trustee reasonable indemnity
and (b) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Series 2 Debentures then Outstanding a direction
inconsistent with such request, and (c) the Trustee shall have failed to
institute any such proceeding, within 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by a Holder of Series 2 Debentures for the enforcement of any payment
of principal hereof or interest hereon on or after the respective due dates
expressed herein.
No provision of this Security or of the Trust Indenture shall alter or impair
the obligation of the Corporation, which is absolute and unconditional, to pay
the principal of and interest on the Series 2 Debentures represented by this
Security at the time, place, and rate, and in the coin and currency, herein
prescribed.
The Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not payment in respect of this Security be overdue,
and none of the Corporation, the Trustee or any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with the laws of
the State of New York and the federal laws of the United States of America
applicable thereto and shall be treated in all respects as a New York contract,
except as may be otherwise required by mandatory provisions of law.
Notwithstanding the preceding sentence, the exercise, performance or discharge
by the Trustee of any of its rights, powers, duties or responsibilities
hereunder shall be construed in accordance with the laws of the Province of
Alberta and the federal laws of Canada applicable thereto.
All terms used in this Security which are defined in the Trust Indenture and not
otherwise defined herein shall have the meanings assigned to them in the Trust
Indenture.
<PAGE>
Unless the certificate of authentication hereon has been executed by the Trustee
by manual signature, this Security shall not be entitled to any benefit under
the Trust Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF the Corporation has caused this Security to be duly executed.
DATE OF ISSUE: July 2, 1996 NORCEN ENERGY RESOURCES LIMITED
By:
--------------------------------
Title:
By:
--------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is a Security representing Series 2 Debentures referred to in the
within-mentioned Trust Indenture.
MONTREAL TRUST COMPANY OF CANADA,
as Trustee
By:
--------------------------------
Authorized Officer
Date of Authentication:
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -----------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF TRANSFEREE]
<PAGE>
the within Security, and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer such security on the books of the Corporation, with full
power of substitution in the premises.
Dated:
--------------------------------------
Signature of Transferor:
--------------------------------------
Signature of Transferor is Guaranteed by:
--------------------------------------
NOTICE: The signature to this assignment and transfer must correspond
with the name as written upon the face of the within Security
in every particular without alteration or enlargement or any
change whatsoever.
<PAGE>
NORCEN ENERGY RESOURCES LIMITED
And
MONTREAL TRUST COMPANY OF CANADA
Trustee
Third Supplemental Indenture
Dated as of June 26, 1997
to
Trust Indenture
Dated as of May 7, 1996
providing for the issue of
6.80% Debentures due July 2, 2002
in aggregate principal amount of
U.S. $250,000,000
<PAGE>
Third Supplemental Indenture
June 26, 1997
Between
NORCEN ENERGY RESOURCES LIMITED , a corporation incorporated
under the laws of Canada, and having its registered office at
the City of Calgary in the Province of Alberta, Canada (the
"Corporation"),
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada and duly authorized to carry on the
trust business in each province of Canada (the "Trustee")
Whereas by a trust indenture (hereinafter referred to as the "Original
Indenture") made as of May 7, 1996 between the Corporation and the Trustee
provision was made for the issue of Securities of the Corporation in one or more
series; and
Whereas under and in accordance with the terms of the Original Indenture, as
supplemented and amended by a first supplemental indenture made as of May 22,
1996 and by a second supplemental indenture made as of June 26, 1996, there have
heretofore been issued two series of Securities; and
Whereas the Original Indenture provides that the aggregate principal amount of
Securities which may be issued thereunder is unlimited but Securities may be
issued only upon and subject to the conditions and limitations set forth
therein; and
Whereas the Corporation desires to issue the third series of Securities having
the attributes and characteristics hereinafter set forth; and
Whereas the Corporation is not in default under the Original Indenture; and
Whereas all necessary acts and proceedings have been done and taken and all
necessary resolutions passed to authorize the execution and delivery of this
Third Supplemental Indenture and to make the same legal and valid and binding
upon the Corporation; and
<PAGE>
Whereas the foregoing recitals are made as representations and statements of
fact by the Corporation and not by the Trustee;
Now Therefore This Third Supplemental Indenture Witnesses that, in consideration
of the premises and the covenants herein contained, the parties hereto agree as
follows:
Article 1
Definitions And Other Provisions Of General Application
1.01 Definitions
For all purposes of this Third Supplemental Indenture and in the Series 3
Debentures, except as otherwise expressly provided or unless the subject matter
or context otherwise requires:
"6.80% Debentures due July 2, 2002 means the series of Securities
created by the Corporation to be authenticated and delivered pursuant
to the terms of this Third Supplemental Indenture and herein sometimes
referred to as the "Series 3 Debentures";
"First Supplemental Indenture" means the first supplemental indenture
made as of May 22, 1996 between the Corporation and the Trustee in
supplement to the Original Indenture;
"Original Indenture" means the trust indenture made as of May 7,1996
between the Corporation and the Trustee;
"Second Supplemental Indenture" means the second supplemental indenture
made as of June 26, 1996 between the Corporation and the Trustee in
supplement to the Original Indenture;
"Third Supplemental Indenture", "hereto", "herein", "hereof", "hereby",
"hereunder" and similar expressions refer to this Third Supplemental
Indenture made as of June 26, 1997 and not to any particular Article,
Section or other portion thereof, and include any and every instrument
supplemental or ancillary hereto or in implement hereof, and the
expressions "Article" and "Section" followed by a number mean and refer
to the specified Article or Section of this Third Supplemental
Indenture;
<PAGE>
"Trust Indenture" means the Original Indenture as supplemented by the
First Supplemental Indenture, the Second Supplemental Indenture and
this Third Supplemental Indenture and any other indenture, deed or
instrument supplemental or ancillary thereto; and
other terms and expressions used herein shall have the same meanings as
corresponding expressions defined in the Original Indenture.
1.02 Schedules
The following Schedule forms part of this Third Supplemental Indenture:
Schedule A - Form of Series 3 Debenture
1.03 Notice to Holders
Where the Trust Indenture or any Series 3 Debenture requires or permits the
Corporation or the Trustee to give to the Holders of Series 3 Debentures notice
by publication in an Authorized Newspaper, such notice is hereby required to be
published in an Authorized Newspaper in The City of New York.
1.04 To be Read with Original Indenture
This Third Supplemental Indenture is a supplemental indenture within the meaning
of the Original Indenture and the Original Indenture and this Third Supplemental
Indenture shall be read together and shall have effect, so far as practicable,
as though all the provisions of the Original Indenture and this Third
Supplemental Indenture were contained in one instrument.
Article 2
Series 3 Debentures
2.01 Designation
There is hereby authorized to be issued under the Trust Indenture a series of
Securities designated as "6.80% Debentures due July 2, 2002".
<PAGE>
2.02 Limit of Aggregate Principal Amount
The aggregate principal amount of Series 3 Debentures that may be authenticated
and delivered (subject to the exceptions described in Section 3.01(b) of the
Original Indenture) shall be limited to U.S. $250,000,000.
2.03 Currency of Denomination
The Series 3 Debentures shall be denominated in U.S. Dollars.
2.04 Dates of Issue and Payment of Principal
The date of issue of the Series 3 Debentures shall be July 2, 1997 and the
principal of the Series 3 Debentures shall be payable on July 2, 2002.
2.05 Interest
(1) The Series 3 Debentures shall bear interest at the rate of 6.80% per
annum.
(2) Interest in respect of the Series 3 Debentures shall accrue from July
2, 1997 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for.
(3) The Interest Payment Dates on which interest shall be payable in
respect of the Series 3 Debentures shall be January 2 and July 2 in
each year, commencing January 2, 1998.
(4) The Regular Record Dates for interest in respect of the Series 3
Debentures shall be December 15 and June 15 (whether or not a Business
Day) in respect of the interest payable on January 2 and July 2,
respectively.
2.06 Payments
(1) The principal of and interest on the Series 3 Debentures that are
issued in the form of Registered Global Securities and registered in
the name of the nominee of the Depository shall be payable by wire
transfer in immediately available funds to the nominee of the
Depository.
(2) The principal of the Series 3 Debentures that are issued in definitive
form shall be payable at the Corporate Trust Office and interest on
such Series 3 Debentures shall be payable at the Corporate Trust Office
or otherwise as
<PAGE>
the Corporation may determine in accordance with Section 3.07(2) of
the Original Indenture, in each case in immediately available funds.
2.07 Redemption
The Series 3 Debentures are not redeemable prior to maturity but the Corporation
retains the right, at any time and from time to time, to purchase Series 3
Debentures in the open market or otherwise by such method and at such price or
prices as shall be determined by the Corporation.
2.08 Sinking Fund
The Series 3 Debentures are not subject to redemption pursuant to any sinking
fund.
2.09 Form and Denominations
The Series 3 Debentures shall be issuable as Registered Securities, initially as
Registered Global Securities, in denominations of US $1000 or any integral
multiple thereof, and shall be substantially in the form set forth on Schedule A
hereto.
2.10 Additional Amounts
The Corporation shall not be required to pay any additional amount on the Series
3 Debentures in respect of any tax, assessment or governmental charge withheld
or deducted.
2.11 Trustee, etc.
The trustee, authenticating agent, paying agent, transfer agent and the
registrar for the Series 3 Debentures shall be the Trustee.
2.12 Depository
The Depository for the Series 3 Debentures shall be The Depository Trust
Company, 55 Water Street, New York, New York 10004 U.S.A.
<PAGE>
2.13 Additional Events of Default or Covenants
There are no additional events of default or covenants with respect to the
Series 3 Debentures, but all Events of Default and covenants specified in the
Original Indenture shall be applicable thereto.
Article 3
Miscellaneous Provisions
3.01 Confirmation of Original Indenture
The Original Indenture, as amended and supplemented by this Third Supplemental
Indenture, is in all respects confirmed.
3.02 Acceptance of Trusts
The Trustee hereby accepts the trusts in this Third Supplemental Indenture
declared and provided for and agrees to perform the same upon the terms and
conditions and subject to the provisions set forth in the Original Indenture as
supplemented by this Third Supplemental Indenture.
3.03 Counterparts and Formal Date
This Third Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original; and all such
counterparts together shall constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this Third Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
NORCEN ENERGY RESOURCES LIMITED
By: (signed)
Robert J. Waters
Treasurer
By: (signed)
E.A. Leew
Vice President, Legal & Secretary
MONTREAL TRUST COMPANY OF CANADA
By: (signed)
Name: Bradley Loughton
Title: Senior Corporate Trust
Officer
By: (signed)
Name: Laura Leong
Title: Corporate Trust Officer
<PAGE>
Schedule A
to
Third Supplemental Indenture
REGISTERED No. R REGISTERED U.S. $250,000,000 CUSIP:
[INSERT IF THE SECURITY IS TO BE A REGISTERED GLOBAL SECURITY] - This Security
is a Registered Global Security within the meaning of the Trust Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Registered Global Security is exchangeable for
Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Trust Indenture, and
no transfer of this Security (other than a transfer of this Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository) may be registered except in such limited circumstances.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the
Corporation (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
NORCEN ENERGY RESOURCES LIMITED.
6.80% DEBENTURE DUE July 2, 2002
NORCEN ENERGY RESOURCES LIMITED, a corporation incorporated under the laws of
Canada (together with its successors and assigns, the "Corporation"), for value
received, hereby promises to pay to
<PAGE>
_______________________ the principal sum of Two Hundred and Fifty Million
United States Dollars (U.S.$250,000,000), on July 2, 2002 and to pay interest
thereon at the rate of 6.80% per annum from July 2, 1997 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on January 2 and July 2 in each year (each such
date an "Interest Payment Date") commencing January 2, 1998 until the principal
hereof is paid or duly made available for payment.
The interest so payable on any Interest Payment Date shall, subject to certain
exceptions, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which shall
be December 15 or June 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date to be
fixed by the Trustee for the payment of such Defaulted Interest, notice whereof
shall be given to the Holder not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Series 3 Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Trust Indenture (as defined below).
Payment of the principal of and the interest due on the Series 3 Debentures
represented by this Security that are issued in the form of Registered Global
Securities and registered in the name of the nominee of the Depository shall be
made by wire transfer in immediately available funds to the nominee of the
Depository. Payment of the principal of and the interest due on the Series 3
Debentures represented by this Security that are issued in definitive form will
be made at the Corporate Trust Office (as defined below) in immediately
available funds. Payment of the principal of and interest on the Series 3
Debentures represented by this Security will be made in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
This Security is one of a series of Securities designated as the 6.80%
Debentures due July 2, 2002 of the Corporation (the "Series 3 Debentures"),
limited in aggregate principal amount to U.S.$250,000,000, issued or to be
issued under and pursuant to a trust indenture made as of May 7, 1996 (the
"Original Indenture"),
<PAGE>
between the Corporation and Montreal Trust Company of Canada, as trustee (the
"Trustee", which term includes any successor trustee under the Trust Indenture),
as supplemented by the First Supplemental Indenture made as of May 22, 1996 (the
"First Supplemental Indenture") between the Corporation and the Trustee, the
Second Supplement Indenture made as of June 26, 1996 (the "Second Supplemental
Indenture") between the Corporation and the Trustee and the Third Supplemental
Indenture made as of June 26, 1997 (the "Third Supplemental Indenture") between
the Corporation and the Trustee to which Original Indenture,
First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental
Indenture and all indentures supplemental thereto (herein collectively referred
to as the "Trust Indenture") reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the
Corporation, the Trustee and Holders of the Securities and the terms upon which
the Securities are, and are to be, authenticated and delivered. The "Corporate
Trust Office" means the office of the Trustee at which its corporate trust
business in Calgary, Alberta, Canada, at any particular time, shall be
principally administered, which office at the date of the Third Supplemental
Indenture was located at 710, 530 - 8th Ave. S.W., Calgary, Alberta, Canada T2P
3S8.
The Series 3 Debentures shall not be redeemable prior to Maturity and shall not
be subject to any sinking fund but are subject to defeasance and covenant
defeasance at the option of the Corporation upon compliance with certain
conditions set forth in the Trust Indenture.
The Trustee has been appointed registrar for the Series 3 Debentures, and the
Trustee will maintain at the Corporate Trust Office a register for the
registration and transfer of Series 3 Debentures. Subject to the limitations,
terms and conditions set forth herein and in the Trust Indenture, this Security
may be transferred at the aforesaid office of the Trustee by surrendering this
Security for cancellation, and thereupon the Trustee shall issue in the name of
the transferee or transferees, in exchange herefor, one or more new Securities
of like tenor and terms in authorized denominations for a like aggregate
principal amount. Upon the occurrence of certain events specified in Section
3.05 of the Original Indenture, this Security is exchangeable at the said office
of the Trustee for Series 3 Debentures represented by definitive registered
Debentures without coupons in authorized denominations in an equal aggregate
principal amount and having like tenor and terms as the surrendered Security.
Each Security surrendered for transfer or exchange shall be duly endorsed by, or
be accompanied by a written instrument
<PAGE>
or instruments of transfer in form satisfactory to the Corporation and the
Trustee and duly executed by, the registered Holder or the Holder's attorney
duly authorized in writing. The Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such transfer or exchange; but no service charge shall be
made for any such transfer or exchange.
The Securities of this series may be issued in the form of one or more
Registered Global Securities to The Depository Trust Company as depository for
the Registered Global Securities of this series (the "Depository") or its
nominee and registered in the name of the Depository or such nominee. If the
face of this Security contains a legend indicating that this Security is a
Registered Global Security so registered, the transfer and exchange hereof is
subject to the additional limitations set forth in such legend, and the Trust
Indenture provides that unless and until a Registered Global Security is
exchanged in whole or in part for Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository.
In case an Event of Default with respect to the Series 3 Debentures shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Trust Indenture.
The Trust Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Trust Indenture at any time by the Corporation and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Trust Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Series 3 Debentures then
Outstanding, on behalf of the Holders of all Series 3 Debentures, to waive
compliance by the Corporation with certain provisions of the Trust Indenture and
certain past defaults under the Trust Indenture and their consequences.
<PAGE>
As provided in and subject to the provisions of the Trust Indenture, no Holder
of Series 3 Debentures shall have any right to institute any proceeding with
respect to the Trust Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless (a) such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Series 3 Debentures and the Holders of not less than 25% in
aggregate principal amount of the Series 3 Debentures then Outstanding shall
have made written request to the Trustee to institute such proceeding in respect
of such Event of Default as Trustee and offered the Trustee reasonable indemnity
and (b) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Series 3 Debentures then Outstanding a direction
inconsistent with such request, and (c) the Trustee shall have failed to
institute any such proceeding, within 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by a Holder of Series 3 Debentures for the enforcement of any payment
of principal hereof or interest hereon on or after the respective due dates
expressed herein.
No provision of this Security or of the Trust Indenture shall alter or impair
the obligation of the Corporation, which is absolute and unconditional, to pay
the principal of and interest on the Series 3 Debentures represented by this
Security at the time, place, and rate, and in the coin and currency, herein
prescribed.
The Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not payment in respect of this Security be overdue,
and none of the Corporation, the Trustee or any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with the laws of
the State of New York and the federal laws of the United States of America
applicable thereto and shall be treated in all respects as a New York contract,
except as may be otherwise required by mandatory provisions of law.
Notwithstanding the preceding sentence, the exercise, performance or discharge
by the Trustee of any of its rights, powers, duties or responsibilities
hereunder shall be construed in accordance with the laws of the Province of
Alberta and the federal laws of Canada applicable thereto.
<PAGE>
All terms used in this Security which are defined in the Trust Indenture and not
otherwise defined herein shall have the meanings assigned to them in the Trust
Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee
by manual signature, this Security shall not be entitled to any benefit under
the Trust Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF the Corporation has caused this Security to be duly executed.
DATE OF ISSUE: July 2, 1997
NORCEN ENERGY RESOURCES LIMITED
By:_____________________________
Title:
By:_____________________________
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is a Security representing Series 3 Debentures referred to in the
within-mentioned Trust Indenture.
MONTREAL TRUST COMPANY OF CANADA,
as Trustee
By:________________________________
Authorized Officer
Date of Authentication:__________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ----------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF TRANSFEREE]
the within Security, and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer such security on the books of the Corporation, with full
power of substitution in the premises.
Dated: _______________________________________
Signature of Transferor: _______________________________________
Signature of Transferor is Guaranteed by:_______________________________________
NOTICE: The signature to this assignment and transfer must correspond
with the name as written upon the face of the within Security
in every particular without alteration or enlargement or any
change whatsoever.
<PAGE>
NORCEN ENERGY RESOURCES LIMITED,
UNION PACIFIC RESOURCES GROUP INC.
as Guarantor
And
MONTREAL TRUST COMPANY OF CANADA
as Trustee
- --------------------------------------------------------------------------------
Fourth Supplemental Indenture
Dated as of February 27, 1998
to
Trust Indenture
Dated as of May 7, 1996
providing for the Guarantee of all Securities
be Issued or Previously Issued under
the Trust Indenture
- --------------------------------------------------------------------------------
<PAGE>
Fourth Supplemental Indenture
February 27, 1998
Between
NORCEN ENERGY RESOURCES LIMITED, a corporation
incorporated under the laws of Canada and having its
registered office at the City of Calgary in the
Province of Alberta, Canada (the "Corporation"),
- and -
UNION PACIFIC RESOURCES GROUP INC., a corporation
incorporated under the laws of Utah, and having its
principal office in Forth Worth, Texas, U.S.A.
("UPR")
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company
incorporated under the laws of Canada and duly
authorized to carry on the trust business in each
province of Canada (the "Trustee")
Whereas by a trust indenture (hereinafter referred to as the "Original
Indenture") made as of May 7, 1996, between the Corporation and the Trustee
provision was made for the issue of Securities of the Corporation in one or more
series; and
Whereas under and in accordance with the terms of the Original Indenture, as
supplemented and amended by a first supplemental indenture made as of May 22,
1996, a second supplemental indenture made as of June 26, 1996, and a third
supplemental indenture made as of June 26, 1997, there have heretofore been
issued three series of Securities (the "Issued Securities"); and
Whereas UPR intends, through its wholly-owned subsidiary Union Pacific Resources
Inc. ("UPRI"), to purchase (the "Acquisition") all of the outstanding common
shares in the share capital of the Corporation pursuant to a cash tender offer
described in the Pre-acquisition Agreement, dated January 25, 1998, between UPR,
UPRI and the Corporation; and
Whereas UPR desires to unconditionally and irrevocably guarantee the full and
punctual payment of principal of and interest on the Securities (including the
Issued Securities) when due, whether at maturity, by acceleration, by redemption
or otherwise, and all other monetary obligations of the Company under the
Indenture (including obligations to the Trustee) and the Securities and any
Coupons appertaining thereto, and the full and punctual performance within
applicable grace periods of all other obligations of the Company under the
Original Indenture, as supplemented from time to time, and the Securities and
any Coupons appertaining thereto; and
Whereas the Corporation is not in default under the Original Indenture, as
supplemented; and
Whereas all necessary acts and proceedings have been done and taken and all
necessary resolutions passed to authorize the execution and delivery of this
Fourth Supplemental Indenture
<PAGE>
2
and to make the same legal and valid and binding upon the Corporation and UPR
upon compliance with the conditions set forth herein; and
Whereas the foregoing recitals are made as representations and statements of
fact by the Corporation and UPR and not by the Trustee;
Now Therefore This Fourth Supplemental Indenture Witnesses that, in
consideration of the premises and the covenants herein contained, the parties
hereto agree as follows:
Article 1
Amendment of Original Indenture
The Corporation, UPR and the Trustee hereby agree that the
following provisions of this Fourth Supplemental Indenture supplement the
Original Indenture with respect to all Securities issued or to be issued
thereunder:
1.01 The Guarantee.
(a) UPR irrevocably and unconditionally guarantees (the "Guarantee") to
each Holder of Securities and to the Trustee and its successors and
assigns, (i) the full and punctual payment of principal of and interest
on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the
Corporation under this Indenture (including obligations to the Trustee)
and the Securities and (ii) the full and punctual performance within
applicable grace periods of all other obligations of the Corporation
under this Indenture and the Securities.
(b) UPR further agrees that the Guarantee constitutes a guarantee of
payment, performance and compliance and not merely of collection.
(c) The obligations of UPR to make any payment hereunder may be satisfied
by causing the Corporation to make such payment.
(d) UPR also agrees to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder of
Securities in enforcing any of their respective rights under the
Guarantee.
1.02 Subrogation.
UPR shall be subrogated to any of the rights (whether contractual, under
applicable laws or otherwise) of any Holder against the Corporation or any other
Person or against any Holder for the payments in respect of any amounts to any
Holder pursuant to the provisions of this Guarantee; provided, however, that UPR
shall not be entitled to enforce, or to receive any payments arising out of or
based upon, such right of subrogation until the principal of and any premium and
interest on all the Securities of the same series shall have been paid in full.
Article 2
Condition Precedent
2.01 Consummation of Acquisition
The obligations of the parties under this Fourth Supplemental Indentures are
subject to the prior consummation of the Acquisition.
<PAGE>
3
Article 3
Miscellaneous Provisions
3.01 Confirmation of Original Indenture
The Original Indenture, as amended and supplemented by this Fourth Supplemental
Indenture, is in all respects confirmed.
3.02 Acceptance of Trusts
The Trustee hereby accepts the trusts in this Fourth Supplemental Indenture
declared and provided for and agrees to perform the same upon the terms and
conditions and subject to the provisions set forth in the Original Indenture as
supplemented by this Fourth Supplemental Indenture.
3.03 Governing Law
The Fourth Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York and the federal laws of the
United States of America applicable thereto and shall be treated in all respects
as New York contracts, except as may be otherwise required by mandatory
provisions of law. Notwithstanding the preceding sentence of this Section, the
exercise, performance or discharge by the Trustee of any of its rights, powers,
duties or responsibilities hereunder shall be construed in accordance with the
laws of the Province of Alberta and the federal laws of Canada applicable
thereto.
3.04 Headings
The headings of this Fourth Supplemental Indenture are for reference only and
shall not limit or otherwise affect the meaning hereof.
3.05 Counterparts
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; and
all such counterparts together shall constitute but one and the same instrument.
<PAGE>
4
IN WITNESS WHEREOF the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
NORCEN ENERGY RESOURCES LIMITED
By: /s/ Robert J. Waters
-------------------------------------
Name: Robert J. Waters
Title: Treasurer
By: /s/ Edward A. Leew
-------------------------------------
Name: Edward A. Leew
Title: Vice President Legal
UNION PACIFIC RESOURCES GROUP
INC.
By: /s/ Joseph A. LaSala, Jr.
-------------------------------------
Name: Joseph A. LaSala, Jr.
Title: Vice President, General Counsel and
Secretary
By: /s/ Morris B. Smith
-------------------------------------
Name: Morris B. Smith
Title: Vice President and Chief Financial
Officer
MONTREAL TRUST COMPANY OF
CANADA
By: /s/ M. Rose Guidolin
-------------------------------------
Name: M. Rose Guidolin
Title: Assistant Vice President and Deputy
General Manager Western Region
Corporate Services
By: /s/ Laura Leong
-------------------------------------
Name: Laura Leong
Title: Corporate Trust Officer
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
NORCEN ENERGY RESOURCES LIMITED,
(Registrant)
Dated: March 4, 1998
by
-----------------------------------
Name:
Title:
<PAGE>
Exhibit 99.1
FOR IMMEDIATE RELEASE
TUESDAY, MARCH 3, 1998
UNION PACIFIC RESOURCES GROUP INC.
COMPLETES ACQUISITION OF
NORCEN ENERGY RESOURCES LTD.
FORT WORTH, Texas -- Union Pacific Resources Group Inc. (NYSE-UPR) today
announced the closing of its acquisition of Norcen Energy Resources Ltd.
(Norcen). On January 26, 1998, UPR and Norcen announced that their respective
Boards of Directors had approved the acquisition of Norcen by UPR and that UPR
would initiate a tender offer for the 50.5 percent of Norcen's outstanding stock
that was not owned or controlled by Noranda Inc., a shareholder of 49.5 percent
Norcen common stock.
Noranda had signed an irrevocable agreement to tender its 49.5 percent of
Norcen stock to UPR. In total, 95.5 percent of Norcen's stock was tendered to
UPR at the purchase price of US$13.65 per share (C$19.80). UPRI now owns
181,076,311 common shares of Norcen being approximately 96.8 percent of the
issued and outstanding common shares of Norcen on a fully diluted basis. The
overall value of the transaction is US$2.6 billion plus the assumption of
Norcen's outstanding debt of approximately US$900 million.
"We have said Norcen represents an excellent strategic fit for UPR and we
are pleased to have the transaction complete," said Jack L. Messman, UPR's
Chairman and CEO. "UPR is now a well balanced North American company with a
diversified reserve and production base. We are well position for substantial
and profitable long-term growth and are poised to deliver on our number one
objective-building long term shareholder value."
Union Pacific Resources is one of the nation's largest domestic
independent oil and gas exploration and production companies. Based in Fort
Worth, Texas, UPR has been the #1 domestic driller for the past 6 years.
This press release, other than historical financial information, contains
forward looking statements regarding dilution, cash flow, planned drilling
activity, asset divestitures, equity issuances, expected production efforts and
volumes that are subject to a number of risks and uncertainties which are
described in the Company's SEC reports, including the report on Form 10-Q for
the quarter ended September 30, 1997. Actual results may vary materially.
Media Contact: Analyst Contact:
Pat Doyle David Larson
8
<PAGE>
Director, Public Affairs Director, Investor Relations
817-877-6527 817-877-7294
Internet:www.upr.com
9
<PAGE>
Exhibit 99.1
FOR IMMEDIATE RELEASE
FRIDAY, MARCH 6, 1998
UNION PACIFIC RESOURCES GROUP
ANNOUNCES 100 PERCENT OWNERSHIP
OF NORCEN ENERGY RESOURCES LTD.
FORT WORTH, Texas -- Union Pacific Resources Group Inc. (NYSE-UPR) today
announced that on March 5, 1998, its indirect wholly-owned subsidiary, Union
Pacific Resources, Inc. ("UPRI"), completed the compulsory acquisition
procedures pursuant to section 206 of the Canada Business Corporations Act in
order to acquire the remaining 6,107,965 issued and outstanding common shares of
Norcen Energy Resources Ltd. (Norcen), representing approximately 3.2 percent
which had not previously been acquired pursuant to UPRI's Offer to Purchase and
Take-Over Bid Circular dated January 30, 1998, which expired on March 2, 1998,
UPRI owned approximately 96.8 percent of the issued and outstanding shares of
Norcen. UPRI now beneficially owns 100 percent of the issued and outstanding
common shares of Norcen on a fully-diluted basis.
Union Pacific Resources is one of the nation's largest independent oil and
gas exploration and production companies. Based in Fort Worth, Texas, UPR has
been the #1 domestic driller for the past 6 years.
This press release, other than historical financial information, contains
forward looking statements regarding dilution, cash flow, planned drilling
activity, asset divestitures, equity issuances, expected production efforts and
volumes that are subject to a number of risks and uncertainties which are
described in the Company's SEC reports, including the report on Form 10-Q for
the quarter ended September 30, 1997. Actual results may vary materially.
Media Contact: Analyst Contact:
Pat Doyle David Larson
Director, Public Affairs Director, Investor Relations
817-877-6527 817-877-7294
Internet:www.upr.com
10
