suppl
Filed pursuant to General Instruction to II.K of
Form F-9;
File No. 333-159943
The information in
this preliminary prospectus supplement is not complete and may
be changed. This preliminary prospectus supplement and the
accompanying prospectus do not constitute an offer to sell these
securities and are not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
|
Subject
to Completion, Dated September 20, 2010
Prospectus
Supplement
(to Prospectus dated June 26, 2009)
US$
CANADIAN PACIFIC RAILWAY
COMPANY
% Notes
due
The notes will bear interest at the rate
of % per year. We will pay interest
on the notes semi-annually in arrears
on
and
of each year,
beginning ,
2011. The notes will mature
on .
We may redeem some or all of the notes at any time prior
to ,
at 100% of their principal amount plus a make-whole premium as
described in this prospectus supplement. We may also redeem all
(and not less than all) of the notes if certain changes
affecting Canadian withholding taxes occur. We may redeem some
or all of the notes
after ,
at 100% of their principal amount, plus accrued and unpaid
interest. The notes do not have the benefit of any sinking fund.
The notes will be our unsecured obligations and rank equally
with all of our existing and future unsecured and unsubordinated
indebtedness.
Investing in the notes involves risks that are described in
the Risk Factors section on pages
21-22 of the
accompanying prospectus.
We are permitted, under a multi-jurisdictional disclosure
system adopted by the United States and Canada, to prepare this
prospectus supplement and the accompanying prospectus in
accordance with Canadian disclosure requirements which are
different from those of the United States. For periods prior to
January 1, 2010, we prepared our financial statements in
accordance with Canadian generally accepted accounting
principles and are subject to Canadian auditing and auditor
independence standards. As a result, they may not be comparable
to financial statements of United States companies in certain
respects. Information regarding the impact upon our financial
statements of significant differences between Canadian and
U.S. generally accepted accounting principles is contained
in the notes to the annual consolidated financial statements
incorporated by reference in the accompanying prospectus.
Owning the notes may subject you to tax consequences both in
the United States and in Canada. This prospectus supplement and
the accompanying prospectus may not describe these tax
consequences fully. You should read the tax discussion in this
prospectus supplement.
Your ability to enforce civil liabilities under the
U.S. federal securities laws may be affected adversely
because we are incorporated in Canada, some or all of our
officers and directors and some or all of the experts named in
this prospectus supplement and the accompanying prospectus are
residents of Canada, and a substantial portion of our assets and
all or a substantial portion of the assets of such persons are
located outside of the United States.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offence.
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Per Note
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Total
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Public offering
price(1)
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%
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US$
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Underwriting commission
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%
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US$
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Proceeds, before expenses, to
us(1)
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%
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US$
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(1)
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Plus accrued interest from
September , 2010 if settlement occurs after
that date.
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The underwriters expect to deliver the notes in book-entry form
only through the facilities of The Depository Trust Company
for the accounts of its participants, including Clearstream
Banking, société anonyme, Luxembourg and Euroclear
Bank S.A./N.V. on or about September , 2010.
Joint Book-Running Managers
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Morgan
Stanley |
BofA Merrill Lynch |
The date of this prospectus supplement is
September , 2010.
IMPORTANT
NOTICE ABOUT INFORMATION IN
THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS
This document is in two parts. The first part, this prospectus
supplement, describes the specific terms of the notes we are
offering and also adds and updates certain information contained
in the accompanying prospectus and documents incorporated by
reference. The second part, the base prospectus, dated
June 26, 2009, gives more general information, some of
which may not apply to the notes we are offering. The
accompanying base prospectus is referred to as the
prospectus in this prospectus supplement.
If the description of the notes varies between this
prospectus supplement and the prospectus, you should rely on the
information in this prospectus supplement.
You should rely only on the information contained in or
incorporated by reference in this prospectus supplement and the
prospectus. We have not, and the underwriters have not,
authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in
this prospectus supplement and the prospectus, as well as
information we previously filed with the U.S. Securities
and Exchange Commission and with the Alberta Securities
Commission and incorporated by reference, is accurate as of the
date of such information only. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
In this prospectus supplement, all capitalized terms used and
not otherwise defined herein have the meanings provided in the
prospectus. In the prospectus and this prospectus supplement,
unless otherwise specified or the context otherwise requires,
all dollar amounts are expressed in Canadian dollars. Unless
otherwise stated, financial information included and
incorporated by reference in the prospectus and this prospectus
supplement relating to periods before January 1, 2010 is
determined using Canadian generally accepted accounting
principles (Canadian GAAP) and relating to periods
after December 31, 2009 is determined using generally
accepted accounting principles in the United States
(U.S. GAAP). For a discussion of the principal
differences between the financial results of our parent
corporation, Canadian Pacific Railway Limited
(CPRL), as calculated under U.S. GAAP and under
Canadian GAAP, you should refer to note 31 of CPRLs
audited consolidated financial statements for the year ended
December 31, 2009, incorporated by reference in the
prospectus.
Unless otherwise specified or the context otherwise requires,
all references in this prospectus supplement and the prospectus
to we, us, our or
CP refer to Canadian Pacific Railway Company and its
subsidiaries on a consolidated basis. In the sections entitled
Summary of the Offering and Description of the
Notes in this prospectus supplement and Description
of Debt Securities in the prospectus, we,
us, our or CP refer to only
Canadian Pacific Railway Company, without any of its
subsidiaries.
This prospectus supplement is deemed to be incorporated by
reference into the prospectus solely for the purposes of the
offering of the notes offered hereby. Other documents are also
incorporated or deemed to be incorporated by reference into the
prospectus. See Documents Incorporated by Reference
in this prospectus supplement and Where You Can Find More
Information in the prospectus.
S-2
TABLE OF
CONTENTS
Prospectus
Supplement
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S-4
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S-5
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S-6
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S-8
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S-8
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S-8
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S-9
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S-10
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S-16
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S-20
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S-23
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S-24
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S-25
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Prospectus
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2
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3
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3
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5
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7
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7
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7
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19
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20
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21
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21
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22
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22
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22
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23
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S-3
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference
herein include forward-looking statements within the
meaning of securities laws, including the safe
harbour provisions of the United States Private Securities
Litigation Reform Act of 1995, Section 21E of the United
States Securities Exchange Act of 1934, as amended (the
U.S. Exchange Act), and Section 27A of the
United States Securities Act of 1933, as amended. All
forward-looking statements are based on our current beliefs as
well as assumptions made by and information currently available
to us and relate to, among other things, anticipated financial
performance, business prospects, strategies, regulatory
developments, economic conditions, commitments and technological
developments.
Forward-looking statements may be identified by the use of words
like believes, intends,
expects, may, will,
should, or anticipates, or the negative
equivalents of those words or comparable terminology, and by
discussions of strategies that involve risks and uncertainties.
By their nature, CPRLs forward-looking statements involve
numerous assumptions, inherent risks and uncertainties,
including but not limited to the following factors:
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changes in business strategies;
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general North American and global economic and business
conditions;
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effects of changes in market conditions and discount rates on
the financial position of pension plans and the levels of
required pension fund contributions;
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the availability and price of energy commodities;
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the effects of competition and pricing pressures;
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industry capacity;
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shifts in market demands;
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changes in laws and regulations, including regulation of rates;
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changes in taxes and tax rates;
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potential increases in maintenance and operating costs;
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uncertainties of litigation;
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labour disputes;
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risks and liabilities arising from derailments;
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timing of completion of capital and maintenance projects;
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currency and interest rate fluctuations;
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various events that could disrupt operations, including severe
weather conditions;
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security threats and governmental response to them; and
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technological changes.
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The risks and uncertainties of our business, including those
discussed herein and incorporated by reference in the
prospectus, could cause our actual results and experience to
differ materially from the anticipated results or other
expectations expressed. The material assumptions in making these
forward-looking statements are disclosed under the heading
Business Risks and Enterprise Risk Management in
CPRLs Managements Discussion and Analysis for the
year ended December 31, 2009 and for the six months ended
June 30, 2010, each of which are incorporated by reference
in the prospectus and may be modified or superseded by documents
incorporated or deemed to be incorporated by reference in the
prospectus or herein. In addition, we base forward-looking
information and forward-looking statements on assumptions about
future events, which may not prove to be accurate.
S-4
In light of these risks, uncertainties and assumptions,
prospective investors should not place undue reliance on
forward-looking information and forward-looking statements and
should be aware that events described in the forward-looking
information and forward-looking statements set out in the
prospectus, this prospectus supplement and the documents
incorporated by reference in the prospectus may not occur. We
cannot assure prospective investors that its future results,
levels of activity and achievements will occur as we expect, and
neither we nor any other person assumes responsibility for the
accuracy and completeness of the forward-looking information and
forward-looking statements. Except as required by law, we have
no obligation to update or revise any forward-looking
information or forward-looking statement, whether as a result of
new information, future events or otherwise.
EXCHANGE
RATE INFORMATION
CPRL publishes its consolidated financial statements in Canadian
dollars. In this prospectus supplement, unless otherwise
specified or the context otherwise requires, all dollar amounts
are expressed in Canadian dollars and references to
dollars or $ are to Canadian dollars and
references to US$ are to United States dollars.
The following table sets forth the Canada/U.S. exchange
rates on the last day of the periods indicated as well as the
high, low and average rates for such periods. The high, low and
average exchange rates for each period were identified or
calculated from spot rates in effect on each trading day during
the relevant period. The exchange rates shown are expressed as
the number of U.S. dollars required to purchase one
Canadian dollar. These exchange rates are based on those
published on the Bank of Canadas website as being in
effect at approximately noon on each trading day (the Bank
of Canada noon rate). On September 17, 2010, the Bank
of Canada noon rate was US$0.9680 equals $1.00.
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Six Months
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Year Ended December 31,
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Ended June 30,
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2009
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2008
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2007
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2010
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|
2009
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Period End
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0.9555
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0.8166
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1.0120
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0.9429
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|
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0.8602
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High
|
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0.9716
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|
|
|
1.0289
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1.0905
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|
1.0039
|
|
|
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0.9236
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Low
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|
|
0.7692
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|
|
0.7711
|
|
|
|
0.8437
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|
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|
0.9278
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|
|
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0.7692
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Average
|
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0.8757
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0.9381
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0.9304
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0.9673
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0.8290
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S-5
SUMMARY
OF THE OFFERING
The following is a brief summary of some of the terms of this
offering. For a more complete description of the terms of the
notes, see Description of the Notes in this
prospectus supplement and Description of Debt
Securities in the prospectus.
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|
Securities Offered |
|
US$ million
aggregate principal amount
of % notes
due . |
|
Interest Payment Dates |
|
and
of each year,
beginning ,
2011. |
|
Maturity Date |
|
, . |
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Ranking |
|
The notes will be unsecured obligations ranking pari passu
with all of our existing and future unsecured and
unsubordinated indebtedness. The notes will be structurally
subordinated to all existing and future liabilities, including
trade payables and other indebtedness, of any of our
subsidiaries. See Description of Debt
Securities Ranking in the accompanying
prospectus. |
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Optional Redemption |
|
We may, at our option at any time up to and
including , ,
redeem some or all of the notes at the greater of (1) 100%
of the principal amount of the notes and (2) the present value
of the remaining scheduled payments of principal and interest
discounted on a semi-annual basis at the treasury yield
plus
basis points. At any time
after , ,
the notes will be redeemable in whole or in part, at our option,
at a redemption price equal to 100% of the principal amount of
the notes to be redeemed plus accrued and unpaid interest on the
notes to be redeemed prior to the date of redemption. See
Description of the Notes Optional
Redemption in this prospectus supplement. We may also, at
our option, redeem all of the notes at the redemption price
described in the accompanying prospectus at any time in the
event certain changes affecting Canadian withholding taxes
occur. See Description of Debt Securities Tax
Redemption in the accompanying prospectus. |
|
Form and Denomination |
|
The notes will be represented by fully registered global
securities registered in the name of the nominee of The
Depository Trust Company. Beneficial interests in any
registered global security will be in denominations of US$2,000
and integral multiples of US$1,000 in excess thereof. Except as
described under Description of the Notes in this
prospectus supplement and Description of Debt
Securities in the accompanying prospectus, notes in
definitive form will not be issued. |
|
Change of Control |
|
If a change of control that is accompanied by a downgrade in the
rating of these notes such that the notes are no longer
investment grade occurs, we will be required to make an offer to
purchase the notes at a price equal to 101% of their principal
amount, plus accrued and unpaid interest to the date of
repurchase, as described under the heading Description of
the Notes Change of Control. |
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Additional Issues |
|
We may, from time to time, without notice to or the consent of
holders of the notes, create and issue additional notes ranking
equally with the notes offered hereby in all respects (or in all
respects except for the payment of interest accruing prior to
the |
S-6
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issue date of the new notes or except for the first payment of
interest following the issue date of the new notes). These
additional notes may be consolidated and form a single series
with the notes offered hereby, and have the same terms as to
status, redemption or otherwise as the notes offered hereby. |
|
Certain Covenants |
|
The indenture pursuant to which the notes will be issued
contains certain covenants that, among other things: |
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limit our ability to create liens; and
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restrict our ability to consolidate or merge with a
third party or transfer all or substantially all of our assets.
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These covenants are subject to important exceptions and
qualifications which are described under the caption
Description of Debt Securities in the accompanying
prospectus. |
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Additional Amounts |
|
We will make payments on the notes without withholding or
deduction for Canadian taxes unless required to be withheld or
deducted by law or the interpretation or administration thereof
in which case, subject to certain exemptions, we will pay such
additional amounts as may be necessary so that the net amount
received by holders of the notes after such withholding or
deduction will not be less than the amount that such holders
would have received in the absence of such withholding or
deduction. However, no additional amounts will be payable in
excess of the additional amounts that would be payable if the
holder was a resident of the United States for the purposes of
the Canada-U.S. Income Tax Convention (1980), as amended. See
Description of Debt Securities Additional
Amounts in the accompanying prospectus. |
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Use of Proceeds |
|
The net proceeds to us from this offering will be approximately
US$ million, after deducting
underwriting commissions and estimated expenses of the offering.
The net proceeds received by us from the sale of the notes will
be used to fund a voluntary pre-payment of future pension
contributions to our Canadian defined benefit pension plan. Any
net proceeds that are not applied immediately to fund such
contributions will be invested in short-term marketable
securities. |
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Governing Law |
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The notes and the indenture governing the notes will be governed
by the laws of the State of New York. |
S-7
CANADIAN
PACIFIC RAILWAY COMPANY
We are one of Canadas oldest corporations and were North
Americas first transcontinental railway. From our
inception 129 years ago, we have developed into a
fully-integrated and technologically advanced Class I
railway providing rail and intermodal freight transportation
services over a 15,300-mile network serving the principal
business centres of Canada, from Montreal, Quebec, to Vancouver,
B.C., and the US Midwest and Northeast regions.
We are a wholly-owned subsidiary of CPRL, a publicly-traded
corporation whose common shares are listed on the Toronto Stock
Exchange and the New York Stock Exchange.
USE OF
PROCEEDS
We estimate that the net proceeds to us from this offering will
be approximately US$ million,
after deducting the underwriting commission and after deducting
estimated expenses of the offering of approximately
US$ million. The net proceeds
received by us from the sale of the notes will be used to fund a
voluntary pre-payment of future pension contributions to our
Canadian defined benefit pension plan. Any net proceeds that are
not applied immediately to fund such contributions will be
invested in short-term marketable securities.
CONSOLIDATED
CAPITALIZATION
The following table summarizes CPRLs cash and cash
equivalents and consolidated capitalization at June 30,
2010, and as adjusted to give effect to the issuance of the
notes offered by this prospectus supplement and the application
of the proceeds of the sale of the notes as described under
Use of Proceeds. You should read this table together
with the unaudited consolidated financial statements of CPRL for
the six months ended June 30, 2010 incorporated by
reference in the accompanying prospectus. In the As
Adjusted column, the U.S. dollar amount of the notes
offered hereby has been converted to Canadian dollars using the
Bank of Canada noon buying rate of US$0.9429 per $1.00 at
June 30, 2010.
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As at June 30, 2010
|
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Actual
|
|
|
As Adjusted
|
|
|
|
(millions of dollars)
|
|
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|
(U.S. GAAP)
|
|
|
Cash and cash equivalents
|
|
$
|
373.6
|
|
|
$
|
373.6
|
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|
|
|
|
|
|
|
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|
Long-term debt maturing within one year
|
|
$
|
40.2
|
|
|
$
|
40.2
|
|
|
|
|
|
|
|
|
|
|
Long-term liabilities
|
|
|
|
|
|
|
|
|
Pension and other benefits liabilities
|
|
|
1,252.2
|
|
|
|
|
|
Other long-term liabilities
|
|
|
486.8
|
|
|
|
486.8
|
|
Long-term debt
|
|
|
4,160.4
|
|
|
|
4,160.4
|
|
Notes offered hereby
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
5,899.4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders equity:
|
|
|
|
|
|
|
|
|
Share capital
|
|
|
1,780.8
|
|
|
|
1,780.8
|
|
Additional paid-in capital
|
|
|
29.4
|
|
|
|
29.4
|
|
Accumulated other comprehensive loss
|
|
|
(1,709.5
|
)
|
|
|
(1,709.5
|
)
|
Retained earnings
|
|
|
4,781.3
|
|
|
|
4,781.3
|
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
|
|
|
4,882.0
|
|
|
|
4,882.0
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
10,821.6
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
S-8
EARNINGS
COVERAGE
The earnings coverage ratios set out below have been prepared
and included in this prospectus supplement in accordance with
Canadian disclosure requirements. These ratios do not purport to
be indicative of earnings coverage ratios for any future periods.
For further information regarding earnings coverage, reference
is made to Earnings Coverage in the accompanying
prospectus.
The following earnings coverage ratios of CPRL are calculated on
a consolidated basis for the twelve-month period ended
December 31, 2009 based on audited financial information
prepared in accordance with Canadian GAAP and in accordance with
U.S. GAAP and restated for the change in accounting policy
described in note 2 of CPRLs unaudited consolidated
financial statements for the six months ended June 30,
2010, incorporated by reference in the prospectus and for the
twelve-month period ended June 30, 2010 based on unaudited
financial information prepared in accordance with
U.S. GAAP. In calculating the ratios, the interest expense
has been adjusted to give effect to the issuance of the notes
offered hereby.
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|
|
|
|
|
|
|
|
|
|
|
|
Twelve Months Ended
|
|
|
Twelve Months Ended
|
|
|
Twelve Months Ended
|
|
|
|
December 31, 2009
|
|
|
December 31, 2009
|
|
|
June 30, 2010
|
|
|
|
(in accordance with
|
|
|
(in accordance with
|
|
|
(in accordance with
|
|
|
|
Canadian GAAP)
|
|
|
U.S. GAAP)
|
|
|
U.S. GAAP)
|
|
|
Earnings coverage on long-term debt
|
|
|
|
|
|
|
|
|
|
|
|
|
Before foreign exchange on long-term
debt(1)(3)
|
|
|
x
|
|
|
|
x
|
|
|
|
x
|
|
After foreign exchange on long-term
debt(2)(3)
|
|
|
x
|
|
|
|
x
|
|
|
|
x
|
|
Notes:
|
|
|
(1) |
|
Earnings coverage before foreign exchange on long-term debt is
equal to income before gains or losses in foreign exchange on
long-term debt before interest expense, plus the amount of
interest that has been capitalized during the period, and income
tax expense divided by interest expense on all long-term debt. |
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Earnings coverage after foreign exchange on long-term debt is
equal to income before interest expense, plus the amount of
interest that has been capitalized during the period, and income
tax expense divided by interest expense on all long-term debt. |
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(3) |
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The earnings coverage ratios have been calculated excluding
carrying charges for the long-term debt maturing within one year
reflected as current liabilities in CPRLs consolidated
balance sheets as at December 31, 2009 and June 30,
2010, respectively. If such long-term debt maturing within one
year had been classified as long-term debt for purposes of
calculating earnings coverage ratios, the amount of the annual
carrying charges for such long-term debt maturing within one
year excluding carrying charges of debt repaid after period end
would have been reflected in the calculation of CPRLs
earnings coverage ratios. For the twelve-month period ended
December 31, 2009, earnings coverage on long-term debt
before foreign exchange on long-term debt and after foreign
exchange on long-term debt, calculated in accordance with
Canadian GAAP, would have been x
and x, respectively. For the
twelve-month period ended December 31, 2009, earnings
coverage on long-term debt before foreign exchange on long-term
debt and after foreign exchange on long-term debt, calculated in
accordance with U.S. GAAP, would have
been x
and x, respectively. For the
twelve-month period ended June 30, 2010, earnings coverage
on long-term debt before foreign exchange on long-term debt and
after foreign exchange on long-term debt, calculated in
accordance with U.S. GAAP, would have
been x
and x, respectively. |
S-9
DESCRIPTION
OF THE NOTES
The following description of the terms of the notes
supplements the description set forth in the prospectus and
should be read in conjunction with Description of Debt
Securities in the prospectus. In addition, such
description is qualified in its entirety by reference to the
Indenture under which the notes are to be issued, referred to in
the prospectus. Capitalized terms used but not defined in the
prospectus supplement have the meanings ascribed to them in the
prospectus. In this section only, we,
us, our or CP refer to
Canadian Pacific Railway Company without any of its subsidiaries
through which it operates.
General
The notes will be our direct unsecured obligations. The notes
initially will be issued in an aggregate principal amount of
US$ million. The notes will
mature
on , .
The notes will bear interest at the rate
of % per year. Interest will be
payable on the notes from September , 2010, or
from the most recent date to which interest has been paid or
provided for, payable semi-annually
on
and
of each year,
commencing ,
2011 to the persons in whose names the notes are registered at
the close of business on the next
preceding
or ,
respectively.
Payment of principal, premium, if any, and interest on the notes
will be made in United States dollars.
We may, from time to time, without notice to or the consent of
holders of notes, create and issue additional notes under the
Indenture in addition to the aggregate principal amount of notes
offered hereby. Such additional notes will rank equally with the
notes offered hereby in all respects (or in all respects except
for the payment of interest accruing prior to the issue date of
the new notes or except for the first payment of interest
following the issue date of the new notes) so that the new notes
may be consolidated and form a single series with the notes
offered hereby, and have the same terms as to status, redemption
and otherwise as the notes offered hereby. In the event that
additional notes are issued, we will prepare a new prospectus
supplement.
The provisions of the Indenture relating to the payment of
additional amounts in respect of Canadian withholding taxes in
certain circumstances (described under the caption
Description of Debt Securities Additional
Amounts in the accompanying prospectus) and the provisions
of the Indenture relating to the redemption of debt securities
in the event of specified changes in Canadian withholding tax
law on or after the date of this prospectus supplement
(described under the caption Description of Debt
Securities Tax Redemption in the accompanying
prospectus) will apply to the notes.
The notes will not be entitled to the benefits of any sinking
fund.
Optional
Redemption
The notes will be redeemable in whole or in part at any time up
to and
including , ,
at our option, at redemption prices equal to the greater of
(1) 100% of the principal amount of the notes and
(2) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive
of interest accrued to the date of redemption) discounted to the
redemption date on a semi-annual basis at the Treasury Yield
plus
basis points, together with accrued interest to the date of
redemption. Interest will be calculated on the basis of a
360-day year
consisting of twelve
30-day
months.
At any time
after , ,
the notes will be redeemable in whole or in part, at our option,
at a redemption price equal to 100% of the principal amount of
the notes to be redeemed plus accrued and unpaid interest on the
notes to be redeemed prior to the date of redemption.
Holders of notes to be redeemed will receive notice thereof by
first class mail at least 30 and not more than 60 days
prior to the date fixed for redemption.
Unless we default in the payment of the redemption price, from
and after the redemption date, interest will cease to accrue on
the notes or the portions thereof called for redemption.
S-10
Treasury Yield means, with respect to any
redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity or interpolated (on a day count
basis) of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for
that redemption date.
Comparable Treasury Issue means the United
States Treasury security or securities selected by an
Independent Investment Banker as having an actual or
interpolated maturity comparable to the remaining term of the
notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the notes.
Independent Investment Banker means one of
the Reference Treasury Dealers selected by us or, if such firm
is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national
standing in the United States appointed by us.
Comparable Treasury Price means (1) the
average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (2) if the Trustee
is provided fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer
Quotations.
Reference Treasury Dealer Quotations means,
with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury
Dealer at 3:30 p.m. New York time on the third business day
preceding such redemption date.
Reference Treasury Dealers means Morgan
Stanley & Co. Incorporated and Banc of America
Securities LLC or their affiliates which are primary
U.S. government securities dealers, and their respective
successors; provided, however, that if any of the foregoing
ceases to be a primary U.S. government securities dealer in
The City of New York (a Primary Treasury Dealer), we
will substitute therefor another Primary Treasury Dealer.
Change of
Control
If a Change of Control Triggering Event (as defined below)
occurs, unless we have exercised our right to redeem the notes
as described above, holders of notes will have the right to
require us to repurchase all or any part equal to US$2,000 or an
integral multiple of US$1,000 in excess thereof of the notes
pursuant to the offer described below (the Change of
Control Offer). In the Change of Control Offer, we will be
required to offer payment in cash equal to 101% of the aggregate
principal amount of notes repurchased plus accrued and unpaid
interest, if any, on the notes repurchased, to the date of
purchase (the Change of Control Payment). Within
30 days following any Change of Control Triggering Event,
we will be required to mail a notice to holders of notes
describing the transaction or transactions that constitute the
Change of Control Triggering Event and offering to repurchase
the notes on the date specified in the notice, which date will
be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the Change of Control
Payment Date), pursuant to the procedures described in
such notice. We must comply with the requirements of
Rule 14e-1
under the Securities Exchange Act of 1934, as amended (the
Exchange Act), and any other securities laws and
regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the senior
notes as a result of a Change of Control Triggering Event. To
the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of
the Indenture, we will be required to comply with the applicable
securities laws and regulations and will not be deemed to have
breached our obligations under the Change of Control provisions
of the Indenture by virtue of such conflicts.
On the Change of Control Payment Date, we will be required to:
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accept for payment all notes or portions of notes properly
tendered pursuant to the Change of Control Offer;
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S-11
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deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes
properly tendered; and
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deliver or cause to be delivered to the Trustee the notes
properly accepted together with an officers certificate
stating the aggregate principal amount of notes or portions of
notes being purchased.
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For purposes of the foregoing discussion of a repurchase at the
option of holders of notes, the following definitions are
applicable:
Below Investment Grade Rating Event means the
notes are rated below an Investment Grade Rating by at least two
out of three of the Rating Agencies (as defined below), if there
are three Rating Agencies, or all of the Rating Agencies, if
there are less than three Rating Agencies, (the Required
Threshold) on any date from the date of the public notice
of an arrangement or transaction that could result in a Change
of Control until the end of the
60-day
period following public notice of the occurrence of the Change
of Control, which
60-day
period shall be extended if, by the end of the
60-day
period, the rating of the notes is under publicly announced
consideration for a possible downgrade by such number of Rating
Agencies which, together with the Rating Agencies which have
already lowered their ratings on the notes as aforesaid, would
aggregate in number the Required Threshold, such extension to
continue for so long as consideration for a possible downgrade
continues by such number of Rating Agencies which, together with
the Rating Agencies which have already lowered their ratings on
the notes as aforesaid, would aggregate in number the Required
Threshold.
Change of Control means the occurrence of any
of the following: (1) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of
merger or amalgamation), in one or a series of related
transactions, of all or substantially all of the properties or
assets of us and our subsidiaries taken as a whole to any person
(as such term is used in Section 13(d) of the Exchange Act)
other than us, CPRL or any of our or its subsidiaries;
(2) the consummation of any transaction (including, without
limitation, any merger or amalgamation) the result of which is
that any person (as such term is used in Section 13(d) of
the Exchange Act) becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of
CPRLs voting shares; or (3) the first day on which a
majority of the members of CPRLs Board of Directors are
not Continuing Directors.
Change of Control Triggering Event means the
occurrence of both a Change of Control and a Below Investment
Grade Rating Event.
Continuing Directors means, as of any date of
determination, any member of the Board of Directors of CPRL who
(1) was a member of such Board of Directors on the date of
the issuance of the notes; or (2) was nominated for
election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or
election (either by a specific vote or by approval of
CPRLs proxy statement in which such member was named as a
nominee for election as a director, without objection to such
nomination).
DBRS means DBRS Limited.
Investment Grade Rating means a rating equal
to or higher than BBB (low) (or the equivalent) by DBRS, Baa3
(or the equivalent) by Moodys and BBB- (or the equivalent)
by S&P.
Moodys means Moodys Investors
Service, Inc.
Rating Agencies means (1) each of DBRS,
Moodys and S&P; and (2) if one or more of DBRS,
Moodys or S&P ceases to rate the notes or fails to
make a rating of the notes publicly available for any reason
outside of our control, a nationally recognized
statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F)
under the Securities Exchange Act of 1934, as amended, selected
by us (by a resolution of our Board of Directors) as a
replacement agency for one or more of DBRS, Moodys or
S&P, as the case may be, or if a replacement agency is not
selected, the remaining such agencies providing publicly
available ratings of the notes.
S&P means Standard &
Poors, a Division of The McGraw-Hill Companies, Inc.
S-12
Book-Entry
System
The notes will be represented by fully registered global notes,
without interest coupons and will be deposited upon issuance
with the Trustee as custodian for The Depository
Trust Company (DTC) in New York, New York,
and registered in the name of DTC or its nominee, in each case,
for credit to an account of a direct or indirect participant as
described below. The provisions set forth under
Description of Debt Securities Registered
Global Securities in the accompanying prospectus will be
applicable to the Securities. Except as set forth below, the
global notes may be transferred, in whole and not in part, only
to another nominee of DTC or to a successor of DTC or its
nominee. Except as described under Description of Debt
Securities Debt Securities in Global Form in
the accompanying prospectus, owners of beneficial interests in
the Registered Global Securities representing the notes will not
be entitled to receive notes in definitive form and will not be
considered holders of notes under the Indenture.
Transfers of beneficial interests in the global notes are
subject to the applicable rules and procedures of DTC and its
direct or indirect participants, which may change.
Certain
Book-Entry Procedures for the Global Notes
All interests in global notes will be subject to the operations
and procedures of DTC, Euroclear and Clearstream Luxembourg. The
descriptions of the operations and procedures of DTC, Euroclear
and Clearstream Luxembourg set forth below are provided solely
as a matter of convenience. These operations and procedures are
solely within the control of the respective settlement systems
and are subject to change by them from time to time. We obtained
the information in this section and elsewhere in this prospectus
supplement concerning DTC, Euroclear and Clearstream Luxembourg
and their respective book-entry systems from sources that we
believe are reliable, but we take no responsibility for the
accuracy of any of this information, and investors are urged to
contact the relevant system or its participants directly to
discuss these matters.
DTC. DTC is a limited-purpose trust company
organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC also facilitates the post-trade
settlement among direct participants of sales and other
securities transactions in deposited securities, through
electronic computerized book-entry transfers and pledges between
direct participants accounts. This eliminates the need for
physical movement of securities certificates. Direct
participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is a
wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (DTCC). DTCC is the holding
company for DTC, National Securities Clearing Corporation and
Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to
others such as both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial
relationship with a direct participant, either directly or
indirectly. The DTC Rules applicable to its Participants are on
file with the Securities and Exchange Commission.
Clearstream Luxembourg. Clearstream Luxembourg
is incorporated under the laws of Luxembourg as a professional
depositary. Clearstream Luxembourg holds securities for its
participating organizations (Clearstream Luxembourg
Participants) and facilitates the clearance and settlement
of securities transactions between Clearstream Luxembourg
Participants through electronic book-entry changes in accounts
of Clearstream Luxembourg Participants, thereby eliminating the
need for physical movement of certificates. Clearstream
Luxembourg provides Clearstream Luxembourg Participants with,
among other things, services for safekeeping, administration,
clearance and establishment of internationally traded securities
and securities lending and borrowing. Clearstream Luxembourg
Participants are recognized financial institutions around the
world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations, and may include the underwriters. Indirect access
to Clearstream Luxembourg is also available to others, such as
banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Clearstream
Luxembourg Participants either directly or indirectly.
S-13
Distributions with respect to notes held beneficially through
Clearstream Luxembourg will be credited to cash accounts of
Clearstream Luxembourg Participants in accordance with its rules
and procedures to the extent received by the
U.S. Depositary for Clearstream Luxembourg.
Euroclear. Euroclear was created in 1968 to
hold securities for participants of Euroclear (Euroclear
Participants) and to clear and settle transactions between
Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the
need for physical movement of certificates and any risk from
lack of simultaneous transfers of securities and cash. Euroclear
includes various other services, including securities lending
and borrowing and interfaces with domestic markets in several
markets in several countries. Euroclear is operated by Euroclear
Bank S.A./N.V. (the Euroclear Operator), under
contract with Euro-clear Clearance Systems S.C., a Belgian
cooperative corporation (the Cooperative). All
operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not the
Cooperative. The Cooperative establishes policy for Euroclear on
behalf of Euroclear Participants. Euroclear Participants include
banks (including central banks), securities brokers and dealers
and other professional financial intermediaries and may include
the underwriters. Indirect access to Euroclear is also available
to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or
indirectly.
The Euroclear Operator is regulated and examined by the Belgian
Banking Commission.
Distributions of principal and interest with respect to notes
held through Euroclear or Clearstream Luxembourg will be
credited to the cash accounts of Euroclear or Clearstream
Luxembourg participants in accordance with the relevant
systems rules and procedures, to the extent received by
such systems depositary.
Links have been established among DTC, Clearstream Luxembourg
and Euroclear to facilitate the initial issuance of the Notes
and cross-market transfers of the Notes associated with
secondary market trading. DTC will be linked indirectly to
Clearstream Luxembourg and Euroclear through the DTC accounts of
their respective U.S. depositaries.
Book-Entry Procedures. Purchases of notes
under the DTC system must be made by or through direct
participants, which will receive a credit for the notes on
DTCs records. The ownership interest of each actual
purchaser of each note (beneficial owner) is in turn
to be recorded on the direct and indirect participants
records. Beneficial owners will not receive written confirmation
from DTC of their purchase. Beneficial owners are, however,
expected to receive written confirmations providing details of
the transaction, as well as periodic statements of their
holdings, from the direct or indirect participant through which
the beneficial owner entered into the transaction. Transfers of
ownership interests in the Global Notes are to be accomplished
by entries made on the books of direct and indirect participants
acting on behalf of beneficial owners. Beneficial owners will
not receive certificates representing their ownership interests
in the Global Notes, except in the event that use of the
book-entry system for the notes is discontinued.
The deposit of the Global Notes with DTC and their registration
in the name of Cede & Co. do not effect any change in
beneficial ownership. DTC has no knowledge of the actual
beneficial owners of the Global Notes; DTCs records
reflect only the identity of the direct participants to whose
accounts such securities are credited, which may or may not be
the beneficial owners. The direct and indirect participants will
remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants,
and by direct and indirect participants to beneficial owners
will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from
time to time.
None of DTC, Cede & Co., or any other DTC nominee will
consent or vote with respect to the Global Notes unless
authorized by a direct participant in accordance with DTCs
procedures. Under its usual procedures, DTC mails an omnibus
proxy to us as soon as possible after the record date. The
omnibus proxy assigns Cede & Co.s consenting or
voting rights to those direct participants to whose accounts the
securities are credited on the record date. These participants
are identified in a listing attached to the omnibus proxy.
S-14
Principal and interest payments on the Global Notes will be made
to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTCs
practice is to credit direct participants accounts upon
DTCs receipt of funds and corresponding detail information
from us, on the applicable payment date in accordance with their
respective holdings shown on DTCs records. Payments by
participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with notes
held for the accounts of customers in bearer form or registered
in street name. These payments will be the responsibility of
these participants and not of DTC or its nominee, us, the
trustee, or any other agent or party, subject to any statutory
or regulatory requirements that may be in effect from time to
time. Payment of principal and interest to Cede & Co.,
or any other nominee as may be requested by an authorized
representative of DTC, is our responsibility. Disbursement of
the payments to direct participants is the responsibility of
DTC, and disbursement of the payments to the beneficial owners
is the responsibility of the direct or indirect participants.
We will send any redemption notices to DTC. If less than all of
the notes of a series are being redeemed, DTCs practice is
to determine by lot the amount of the interest of each direct
participant in the issue to be redeemed.
A beneficial owner must give any required notice of its election
to have its notes repurchased through the participant through
which it holds its beneficial interest in the Global Notes to
the applicable trustee or tender agent. The beneficial owner
shall effect delivery of its notes by causing the direct
participant to transfer its interest in the securities on
DTCs records. The requirement for physical delivery of
notes in connection with an optional tender or a mandatory
purchase will be deemed satisfied when the ownership rights in
the securities are transferred by the direct participant on
DTCs records and followed by a book-entry credit of
tendered notes to the applicable trustee or agents DTC
account.
Transfers between participants in DTC will be effected in
accordance with DTCs procedures, and will be settled in
same-day
funds. Transfers between participants in Euroclear or
Clearstream Luxembourg will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers between the participants in DTC, on the
one hand, and Euroclear or Clearstream Luxembourg participants,
on the other hand, will be effected through DTC in accordance
with DTCs rules on behalf of Euroclear or Clearstream
Luxembourg, as the case may be, by its respective depositary;
however, those cross-market transactions will require delivery
of instructions to Euroclear or Clearstream Luxembourg, as the
case may be, by the counterparty in that system in accordance
with the rules and procedures and within the established
deadlines (Brussels time) of that system. Euroclear or
Clearstream Luxembourg, as the case may be, will, if the
transaction meets its settlement requirements, deliver
instructions to its respective depositary to take action to
effect final settlement on its behalf by delivering or receiving
interests in the relevant global notes in DTC, and making or
receiving payment in accordance with normal procedures for
same-day
funds settlement applicable to DTC. Euroclear participants and
Clearstream Luxembourg participants may not deliver instructions
directly to the depositaries for Euroclear or Clearstream
Luxembourg.
Because of time zone differences, the securities account of a
Euroclear or Clearstream Luxembourg participant purchasing an
interest in a global note from a participant in DTC will be
credited, and any such crediting will be reported to the
relevant Euroclear or Clearstream Luxembourg participant, during
the securities settlement processing day (which must be a
business day for Euroclear and Clearstream Luxembourg)
immediately following the settlement date of DTC. DTC has
advised us that cash received in Euroclear or Clearstream
Luxembourg as a result of sales of interest in a global note by
or through a Euroclear or Clearstream Luxembourg participant to
a participant in DTC will be received with value on the
settlement date of DTC but will be available in the relevant
Euroclear or Clearstream Luxembourg cash account only as of the
business day for Euroclear or Clearstream Luxembourg following
DTCs settlement date.
Although we understand that DTC, Euroclear and Clearstream
Luxembourg have agreed to the foregoing procedures to facilitate
transfers of interests in the global notes among participants in
DTC, Euroclear and Clearstream Luxembourg, they are under no
obligation to perform or to continue to perform those
procedures, and those procedures may be discontinued at any
time. Neither we nor the Trustee will have any responsibility
S-15
for the performance by DTC, Euroclear or Clearstream Luxembourg
or their respective participants or indirect participants of
their respective obligations under the rules and procedures
governing their operations.
Same-Day
Settlement and Payment
We will make payments in respect of the notes represented by the
global notes (including principal and interest) by wire transfer
of immediately available funds to the accounts specified by the
global note holder. We will make all payments of principal and
interest with respect to notes in definitive form by wire
transfer of immediately available funds to the accounts
specified by the holders of the notes in definitive form or, if
no such account is specified, by mailing a check to each such
holders registered address. The notes represented by the
global notes are expected to trade in DTCs
Same-Day
Funds Settlement System.
Because of time zone differences, the securities account of a
Euroclear or Clearstream Luxembourg participant purchasing an
interest in a global note from a participant in DTC will be
credited, and any such crediting will be reported to the
relevant Euroclear or Clearstream Luxembourg participant, during
the securities settlement processing day (which must be a
business day for Euroclear and Clearstream Luxembourg)
immediately following the settlement date of DTC. DTC has
advised us that cash received in Euroclear or Clearstream
Luxembourg as a result of sales of interests in a global note by
or through a Euroclear or Clearstream Luxembourg participant to
a participant in DTC will be received with value on the
settlement date of DTC but will be available in the relevant
Euroclear or Clearstream Luxembourg cash account only as of the
business day for Euroclear or Clearstream Luxembourg following
DTCs settlement date.
None of us, any underwriter or agent, the Trustee or any
applicable paying agent will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial interests in a global note, or for
maintaining, supervising or reviewing any records.
DTC may discontinue providing its services as securities
depository with respect to the notes at any time by giving
reasonable notice to us or the Trustee. Under such
circumstances, in the event that a successor securities
depository is not obtained, notes in definitive form are
required to be printed and delivered to each holder.
We may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In
that event, notes in definitive form will be printed and
delivered.
CERTAIN
INCOME TAX CONSIDERATIONS
United
States
The following summary is a discussion of certain material
U.S. federal income tax consequences of the acquisition,
ownership and disposition of the notes by a U.S. Holder, as
defined below, that acquires the notes pursuant to this offering
at the price set forth on the cover of this prospectus
supplement. This discussion is not a complete analysis or
description of all of the possible tax consequences of such
transactions and does not address all tax considerations that
might be relevant to particular holders in light of their
personal circumstances or to persons that are subject to special
tax rules. In particular, the information set forth below deals
only with holders that hold the notes as capital assets for
U.S. federal income tax purposes (generally, property held
for investment). This description of certain material
U.S. federal income tax consequences does not address the
tax treatment of special classes of holders, such as:
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financial institutions,
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regulated investment companies,
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real estate investment trusts,
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partnerships or other pass-through entities (or investors in
such entities),
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tax-exempt entities,
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insurance companies,
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persons holding the notes as part of a hedging, integrated, or
conversion transaction, constructive sale or
straddle,
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U.S. expatriates,
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persons subject to the alternative minimum tax, and
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dealers or traders in securities or currencies.
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This summary does not address U.S. federal estate and gift
tax consequences or tax consequences under any state, local or
foreign laws.
The following discussion is based upon the Internal Revenue Code
of 1986, as amended (the Code), the Treasury
Regulations promulgated under the Code, U.S. judicial
decisions and administrative pronouncements. All of the
preceding authorities are subject to change, possibly with
retroactive effect, which may result in U.S. federal income
tax consequences different from those discussed below. We have
not requested, and will not request, a ruling from the
U.S. Internal Revenue Service (the IRS) with
respect to any of the U.S. federal income tax consequences
described below. As a result, there can be no assurance that the
IRS or a court considering these issues will not disagree with
or challenge any of the conclusions we have reached and describe
herein.
For purposes of this discussion, a U.S. Holder
is a beneficial owner of notes that is (1) an individual
who is a citizen or a resident alien of the United States for
U.S. federal income tax purposes, (2) a corporation
(or other entity treated as a corporation for U.S. federal
income tax purposes) created or organized in or under the laws
of the United States, any state thereof, or the District of
Columbia, (3) an estate the income of which is subject to
U.S. federal income taxation regardless of its source, or
(4) a trust (A) if a court within the United States is
able to exercise primary supervision over its administration and
one or more U.S. persons have authority to control all
substantial decisions of the trust, or (B) that has a valid
election in effect under applicable Treasury Regulations to be
treated as a U.S. person.
If a partnership or other entity treated as a partnership for
U.S. federal income tax purposes holds the notes, the tax
treatment of a partner (or other owner) will generally depend
upon the status of the partner (or other owner) and the
activities of the entity. If a U.S. Holder is a partner (or
other owner) of a pass-through entity that holds notes, such a
U.S. Holder should consult their own tax advisor regarding
the tax consequences of acquiring, owning and disposing of notes.
The following discussion is for general information only and is
not intended to be, nor should it be construed to be, legal or
tax advice to any holder or prospective holder of notes, and no
opinion or representation with respect to the U.S. federal
income tax consequences to any such holder or prospective holder
is given.
We urge holders to consult their own tax advisor regarding
the application of U.S. federal, state and local tax laws,
as well as any applicable foreign tax laws, to their particular
situation.
Payments
of Interest
Each payment of interest on a note will be taxable as foreign
source ordinary interest income at the time it accrues or is
received, in accordance with a U.S. Holders method of
accounting for U.S. federal income tax purposes.
In certain circumstances (see Description of the
Notes Change of Control and Description
of Debt Securities Additional Amounts), we may
be obligated to pay amounts in excess of stated interest or
principal on the notes. It is possible that our obligation to
make additional payments on the notes could implicate the
provisions of Treasury Regulations relating to contingent
payment debt instruments. According to Treasury
Regulations, the possibility that any such payments would be
made will not cause the notes to be treated as contingent
payment debt instruments if there is only a remote chance as of
the date the notes are issued that such payments will be made.
We intend to take the position that the likelihood that we will
be obligated to make any such payments is remote. This
determination is binding on a U.S. Holder unless such
S-17
holder discloses its contrary position in the manner required by
applicable Treasury Regulations. Our determination is not,
however, binding on the IRS and if the IRS were to challenge
this determination, a U.S. Holder may be required to accrue
additional interest income on its notes and to treat as ordinary
income rather than as capital gain any income realized on the
sale or other disposition of a note before the resolution of the
contingency. The remaining discussion assumes the correctness of
this treatment.
Sale,
Exchange, Retirement or Other Taxable Disposition of the
Notes
A U.S. Holder will generally recognize capital gain or loss
upon the sale, exchange, retirement or other taxable disposition
of notes in an amount equal to the difference between
(i) the amount of cash plus the fair market value of any
property received (other than any amounts attributable to
accrued but unpaid stated interest, which will be taxable as
ordinary interest income to the extent not previously included
in income), and (ii) the adjusted tax basis in the notes at
the time of sale, exchange, retirement or other disposition. A
U.S. Holders adjusted tax basis in the notes will
generally be the amount paid for the notes. Any capital gain or
loss will be long-term capital gain or loss if at the time of
the sale, exchange, retirement or other disposition of the
notes, the U.S. Holder has held the notes for more than one
year. Long-term capital gain of non-corporate U.S. Holders,
including individual U.S. Holders, is generally taxed at
reduced rates. The gain or loss will generally be treated as
U.S. source gain or loss. The deductibility of capital
losses is subject to limitations.
New
Legislation
Newly enacted legislation requires certain U.S. Holders who
are individuals, estates or trusts to pay a 3.8 percent tax
on, among other things, interest income and capital gains from
the sale or other disposition of notes for taxable years
beginning after December 31, 2012. In addition, for taxable
years beginning after March 18, 2010, new legislation
requires certain U.S. Holders who are individuals to report
information relating to an interest in notes, subject to certain
exceptions (including an exception for notes held in accounts
maintained by domestic financial institutions).
U.S. Holders are urged to consult their tax advisors
regarding the effect, if any, of new U.S. federal income
tax legislation on their ownership and disposition of notes.
Information
Reporting and Backup Withholding
In general, backup withholding and information reporting
requirements apply to certain payments to U.S. Holders of
principal of, and interest on, a note, and the receipt of
proceeds on the sale or other disposition (including a
retirement or redemption) of a note before maturity, in each
case when made within the United States or through certain
U.S. intermediaries, if a U.S. Holder: fails to
furnish its taxpayer identification number, fails to certify
that such number is correct, fails to certify that such
U.S. Holder is not subject to backup withholding, or
otherwise fails to comply with the applicable requirements of
the backup withholding rules.
Certain U.S. Holders, including corporations, are generally
not subject to backup withholding and information reporting
requirements provided their exemptions from backup withholding
and information reporting are properly established. Backup
withholding is not an additional tax. Any amounts withheld under
the backup withholding rules from a payment to a
U.S. Holder will be allowed as a credit against such
holders U.S. federal income tax liability and may
entitle the U.S. Holder to a refund, provided that the
required information is furnished to the IRS in a timely manner.
U.S. Holders should consult their tax advisors regarding
the application of backup withholding, the availability of an
exemption from backup withholding and the procedure for
obtaining such an exemption, if available.
Canada
The following describes the principal Canadian federal income
tax considerations as of the date of this prospectus supplement,
generally applicable to a purchaser of notes (a
Non-Resident Holder) who, for the purposes of the
Income Tax Act (Canada) (the ITA) at all
relevant times, is not, and is not deemed to be, resident in
Canada, does not use or hold and is not deemed to use or hold
the notes in carrying on a business
S-18
in Canada, deals at arms length with us, is not an
authorized foreign bank and is not an insurer that carries on an
insurance business in Canada and elsewhere.
This summary takes into account the current provisions of the
ITA and the regulations passed pursuant to the ITA (the
ITA Regulations) in force as of the date of this
prospectus supplement, and proposals to amend the ITA and ITA
Regulations publicly announced prior to the date of this
prospectus supplement by the federal Minister of Finance and the
current published administrative practices of the Canada Revenue
Agency. This description is not exhaustive of all Canadian
federal income tax considerations and does not anticipate any
changes in law whether by legislative, government or judicial
action other than the passage of such publicly announced
proposed amendments to the ITA or ITA Regulations, nor does it
take into account provincial, territorial or foreign tax
considerations which may differ from the Canadian federal income
tax considerations described in this prospectus supplement.
This summary is not intended to be, nor should it be
construed to be, legal or tax advice to any particular holder of
notes. Prospective holders should consult their own Canadian tax
advisors with respect to the Canadian income tax considerations
associated with their participation in this offering.
Pursuant to the ITA, interest paid or credited or deemed to be
paid or credited by us on the notes as the case may be, to a
Non-Resident Holder will be exempt from Canadian withholding
tax. No other taxes on income (including taxable capital gains)
will be payable pursuant to the ITA by a Non-Resident Holder in
respect of the acquisition, ownership or disposition of the
notes.
S-19
UNDERWRITING
We intend to offer the notes through the underwriters. Morgan
Stanley & Co. Incorporated and Banc of America
Securities LLC are acting as representatives of the underwriters
named below. Subject to the terms and conditions contained in an
underwriting agreement between us and the underwriters, we have
agreed to sell to the underwriters and the underwriters
severally have agreed to purchase from us, the principal amount
of the notes listed opposite their names below.
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Principal Amount
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Underwriters
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of Notes
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Morgan Stanley & Co. Incorporated
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US$
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Banc of America Securities LLC
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Total
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US$
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In the underwriting agreement, the underwriters have severally
agreed, subject to the terms and conditions set forth therein,
to purchase all the notes offered hereby if any of the notes are
purchased. In the event of default by an underwriter, the
underwriting agreement provides that, in certain circumstances,
purchase commitments of the non-defaulting underwriters may be
increased or the underwriting agreement may be terminated. The
obligations of the underwriters under the underwriting agreement
may also be terminated upon the occurrence of certain stated
events.
We have agreed to severally indemnify the underwriters against
certain liabilities, including liabilities under the Securities
Act of 1933, as amended, or to contribute to payments the
underwriters may be required to make in respect of those
liabilities.
The underwriters are offering the notes, subject to prior sale,
when, as and if issued to and accepted by them, subject to
approval of legal matters by their counsel, including the
validity of the notes, and other conditions contained in the
underwriting agreement, such as the receipt by the underwriters
of officers certificates and legal opinions. The
underwriters reserve the right to withdraw, cancel or modify
offers to the public and to reject orders in whole or in part.
Commissions
and Discounts
The representatives have advised us that the underwriters
propose initially to offer the notes to the public at the public
offering prices set forth on the cover of this prospectus
supplement and to certain dealers at that price less a
concession not in excess of % of
the principal amount of the notes offered hereby. The
underwriters may allow, and such dealers may reallow, a discount
not in excess of % of the principal
amount of the notes offered hereby on sales to certain other
dealers. After the initial public offering, the public offering
price, concession and discount may be changed by the
underwriters.
The expenses of the offering, not including the underwriting
commission, are estimated to be approximately
US$ million and are payable
by us.
No Sales
of Similar Securities
We have agreed not to, prior to the closing of this offering,
offer, sell, contract to sell, or otherwise dispose of any of
our debt securities which mature more than one year after the
closing of this offering, or publicly announce an intention to
effect such transaction, without the prior written consent of
the representatives of the underwriters.
S-20
New Issue
of Notes
The notes are a new issue of securities with no established
trading market. We do not intend to apply for listing of the
notes on any national securities exchange or for quotation of
the notes on any automated dealer quotation system. We have been
advised by the underwriters that they presently intend to make a
market in the notes after completion of the offering. However,
they are under no obligation to do so and may discontinue any
market-making activities at any time without any notice. We
cannot assure the liquidity of the trading market for the notes
or that an active public market for the notes will develop. If
an active public trading market for the notes does not develop,
the market price and liquidity of the notes may be adversely
affected.
FINRA
Regulation
Certain of the underwriters
and/or their
affiliates have performed certain investment banking, commercial
banking and advisory services for us from time to time for which
they have received customary fees and expenses. The underwriters
may, from time to time, engage in transactions with and perform
services for us in the ordinary course of their business. Also,
certain of the underwriters are affiliates of banks which are
lenders to us and to which we currently are indebted. As a
consequence of their participation in the offering, the
underwriters affiliated with such banks will be entitled to
share in the underwriting commission relating to the offering of
the notes. The decision to distribute the notes hereunder and
the determination of the terms of the offering were made through
negotiations between us and the underwriters.
Price
Stabilization and Short Positions
In connection with the offering, the underwriters are permitted
to engage in transactions that stabilize the market price of the
notes. Such transactions consist of bids or purchases to peg,
fix or maintain the price of the notes. If the underwriters
create a short position in the notes in connection with the
offering, (i.e., if they sell more notes than are on the cover
page of this prospectus supplement), the underwriters may reduce
that short position by purchasing notes in the open market.
Purchases of a security to stabilize the price or to reduce a
short position could cause the price of the security to be
higher than it might be in the absence of such purchases.
Neither we nor any of the underwriters makes any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the notes. In addition, neither we nor any of the underwriters
makes any representation that the underwriters will engage in
these transactions or that these transactions, once commenced,
will not be discontinued without notice.
Sales
Outside the United States
European
Economic Area
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
Relevant Member State), each underwriter has
represented and agreed that with effect from and including the
date on which the
Prospectus Directive is implemented in that Relevant Member
State (the Relevant Implementation Date) it has not
made and will not make an offer of the notes to the public in
that Relevant Member State prior to the publication of a
prospectus in relation to the notes which has been approved by
the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and
notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant
Implementation Date, make an offer of the notes to the public in
that Relevant Member State at any time,
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(a)
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to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
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S-21
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(b)
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to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
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(c)
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to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the manager for any such
offer; or
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(d)
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in any other circumstances which do not require the publication
by us of a prospectus pursuant to Article 3 of the
Prospectus Directive.
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For the purposes of this provision, the expression an
offer of the notes to the public in relation to any
notes in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms
of the offer and the notes to be offered so as to enable an
investor to decide to purchase or subscribe the notes, as the
same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and
the expression Prospectus Directive means Directive
2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
Notice
to Investors in the United Kingdom
Each of the underwriters has represented, warranted and agreed
as follows:
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(a)
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it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning
of section 21 of FSMA) to persons who have professional
experience in matters relating to investments falling with
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 or in circumstances in
which section 21 of FSMA does not apply to CP; and
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(b)
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it has complied with, and will comply with all applicable
provisions of FSMA with respect to anything done by it in
relation to the notes in, from or otherwise involving the United
Kingdom.
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Notice
to Residents of Japan
The notes have not been and will not be registered under the
Securities and Exchange Law of Japan (the Securities and
Exchange Law) and each underwriter may not offer or sell
any notes, directly or indirectly, in Japan or to, or for the
benefit of, any resident of Japan (which term as used herein
means any person resident in Japan, including any corporation or
other entity organized under the laws of Japan), or to others
for re-offering or resale, directly or indirectly, in Japan or
to a resident of Japan, except pursuant to an exemption from the
registration requirements of, and otherwise in compliance with,
the Securities and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
Notice
to Residents of Hong Kong
The notes may not be offered or sold by means of any document,
other than (a) to professional investors as
defined in the securities and Futures Ordinance (Cap.
571) of Hong Kong and any rules made under that Ordinance
or (b) in other circumstances which do not result in the
document being a prospectus as defined in the
Companies Ordinance (Cap. 32 of Hong Kong or which do not
constitute an offer to the public within the meaning of that
Ordinance or (ii) issued or had in its possession for the
purposes of issue, and will not issue or have in its possession
for the purposes of issue, whether in Hong Kong or elsewhere any
advertisement, invitation or document relating to the notes
which is directed at, or the contents of which are likely to be
accessed or read by, the public in Hong Kong (except if
permitted to do so under the securities laws of Hong Kong) other
than with respect to the notes which are or are intended to be
disposed of only to persons outside Hong Kong or only to
professional investors as defined in the Securities
and Futures Ordinance and any rules made under that Ordinance.
The contents of this document have not been reviewed by any
regulatory authority in Hong Kong. Prospective investors are
advised to exercise caution in relation to the offer. If you are
in any doubt about any of the contents of this document, you
should obtain independent professional advice.
S-22
Notice
to Residents of Singapore
This prospectus supplement or any other offering material
relating to the notes have not been and will not be registered
as a prospectus with the Monetary Authority of Singapore, and
the notes will be offered in Singapore pursuant to exemptions
under Section 274 and Section 275 of the Securities
and Futures Act, Chapter 289 of Singapore (the
Securities and Futures Act). Accordingly the notes
may not be offered or sold, or be the subject of an invitation
for subscription or purchase, nor may this prospectus supplement
or any other offering material relating to the notes be
circulated or distributed, whether directly or indirectly, to
the public or any member of the public in Singapore other than
(a) to an institutional investor or other person specified
in Section 274 of the Securities and Futures Act,
(b) to a sophisticated investor, and in accordance with the
conditions specified in Section 275 of the Securities and
Futures Act or (c) otherwise pursuant to, and in accordance
with the conditions of, any other applicable provision of the
Securities and Futures Act.
The notes offered hereby have not been qualified for sale under
the securities laws of any province or territory of Canada and
are not being and may not be offered or sold in Canada in
contravention of the securities laws of any province or
territory of Canada. None of the underwriters participating in
the distribution of the notes will offer to sell, directly or
indirectly, any notes acquired by it in connection with the
distribution, in Canada or to residents of Canada in
contravention of the securities laws of Canada or any province
or territory thereof.
LEGAL
MATTERS
Certain legal matters relating to Canadian law will be passed
upon for us by Macleod Dixon LLP, Calgary, Alberta, Canada.
Certain legal matters relating to United States law will be
passed upon for us by Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, New York. In addition, certain legal
matters relating to United States law will be passed upon for
the underwriters by Shearman & Sterling LLP, Toronto,
Ontario.
S-23
DOCUMENTS
INCORPORATED BY REFERENCE
This prospectus supplement is deemed to be incorporated by
reference into the prospectus solely for the purposes of the
notes offered hereby. Other documents are also incorporated or
deemed to be incorporated by reference into the prospectus. The
following documents which have been filed with the securities
commission or similar authority in each of the provinces and
territories of Canada are also specifically incorporated by
reference in and form an integral part of the prospectus:
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(a)
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the annual information form of CPRL dated March 15, 2010;
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(b)
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CPRLs comparative audited consolidated financial
statements as at and for the year ended December 31, 2009,
together with the report of the auditors thereon;
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(c)
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CPRLs managements discussion and analysis for the
year ended December 31, 2009;
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(d)
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CPRLs comparative audited consolidated financial
statements as at and for the year ended December 31, 2009,
as prepared in accordance with U.S. GAAP, together with the
report of the auditors thereon;
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(e)
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CPRLs U.S. GAAP managements discussion and
analysis for the year ended December 31, 2009;
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(f)
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CPRLs management proxy circular dated May 21, 2010;
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(g)
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CPRLs comparative unaudited consolidated financial
statements as at and for the six months ended June 30,
2010; and
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(h)
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CPRLs managements discussion and analysis for the
six months ended June 30, 2010.
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Any statement contained in the prospectus, in this prospectus
supplement or in any document (or part thereof) incorporated by
reference, or deemed to be incorporated by reference, into the
prospectus for the purpose of the offering of the notes offered
hereby shall be deemed to be modified or superseded to the
extent that a statement contained in this prospectus supplement
or in any other subsequently filed document (or part thereof)
that also is, or is deemed to be, incorporated by reference in
the prospectus modifies or supersedes that statement. Any
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute part of this
prospectus supplement or the prospectus. The modifying or
superseding statement need not state that it has modified or
superseded a prior statement or include any other information
set forth in the document which it modifies or supersedes.
You may obtain a copy of our Annual Information Form and other
information identified above by writing or calling us at the
following address and telephone number:
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Canadian Pacific Railway Company
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Suite 500, 401 9th Avenue S.W.
Calgary, Alberta T2P 4Z4
(403) 319-6171
Attention: Corporate Secretary
S-24
CONSENT
OF AUDITORS
We have read the short form base shelf prospectus dated
June 26, 2009 (prospectus) of Canadian Pacific Railway
Company relating to the issue and sale of debt securities in an
aggregate principal amount of up to US$1,500,000,000 or its
equivalency in any other currency. We have complied with
Canadian generally accepted standards for an auditors
involvement with offering documents.
We consent to the incorporation by reference in the
above-mentioned prospectus of our report to the shareholders of
Canadian Pacific Railway Limited (CPRL) on the
consolidated balance sheets of CPRL as at December 31, 2009
and 2008 and the consolidated statements of income,
comprehensive income, changes in shareholders equity and
cash flows for each of the years in the three-year period ended
December 31, 2009 and on the effectiveness of internal
control over financial reporting as of December 31, 2009.
Our report is dated February 25, 2010.
(Signed) PricewaterhouseCoopers LLP
Chartered Accountants
Calgary, Alberta
September 20, 2010
We have read the short form base shelf prospectus dated
June 26, 2009 (prospectus) of Canadian Pacific Railway
Company relating to the issue and sale of debt securities in an
aggregate principal amount of up to US$1,500,000,000 or its
equivalency in any other currency. We have complied with United
States generally accepted accounting principles for an
auditors involvement with offering documents.
We consent to the incorporation by reference in the
above-mentioned prospectus of our report to the shareholders of
Canadian Pacific Railway Limited (CPRL) on the
consolidated balance sheets of CPRL as at December 31, 2009
and 2008 and the consolidated statements of income,
comprehensive income, changes in shareholders equity and
cash flows for each of the years in the three-year period ended
December 31, 2009. Our report is dated February 25,
2010.
(Signed) PricewaterhouseCoopers LLP
Chartered Accountants
Calgary, Alberta
September 20, 2010
S-25
Base Shelf Prospectus
This short form prospectus
constitutes a public offering of the securities only in those
jurisdictions where they may be lawfully offered for sale and
therein only by persons permitted to sell such
securities.
No securities regulatory
authority has expressed an opinion about these securities and it
is an offence to claim otherwise.
Information has been
incorporated by reference in this prospectus from documents
filed with securities commissions or similar authorities in
Canada. Copies of
the documents incorporated herein by reference may be obtained
on request without charge from the Corporate Secretary of
Canadian Pacific Railway, Suite 920, 401 9th
Avenue S.W., Calgary, Alberta, T2P 4Z4, Telephone:
(403) 319-6171
and are also available electronically at www.sedar.com.
CANADIAN PACIFIC RAILWAY
COMPANY
US$1,500,000,000
Debt Securities
Canadian Pacific Railway Company may from time to time, during
the 25 month period that this prospectus remains effective,
offer for sale debt securities in an aggregate principal amount
of up to US$1,500,000,000 or its equivalent in any other
currency. These debt securities may consist of debentures, notes
or other types of debt and may be issued in series.
We will provide the specific terms of these securities and all
information omitted from this prospectus in supplements to this
prospectus that will be delivered to you together with this
prospectus. You should read this prospectus and the supplements
carefully before you invest.
Neither the United States Securities and Exchange Commission
nor any state securities regulator has approved or disapproved
these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offence in the United States.
We are permitted to prepare this prospectus in accordance
with Canadian disclosure requirements, which are different from
those of the United States. We prepare our financial statements
in accordance with Canadian generally accepted accounting
principles, and they are subject to Canadian auditing and
auditor independence standards. Thus, they may not be comparable
to the financial statements of United States companies.
Owning the securities may subject you to tax consequences
both in the United States and Canada. You should read the tax
discussion in any applicable prospectus supplement. This
prospectus or any applicable prospectus supplement may not
describe these tax consequences fully.
Your ability to enforce civil liabilities under United States
federal securities laws may be affected adversely because we are
incorporated under the laws of Canada, most of our officers and
directors and most of the experts named in this prospectus are
residents of Canada, and a substantial portion of our assets are
located outside the United States.
The debt securities offered hereby have not been qualified
for sale under the securities laws of any province or territory
of Canada and are not being and may not be offered or sold,
directly or indirectly, in Canada or to any resident of Canada
in contravention of the securities laws of any province or
territory of Canada.
There is no market through which these securities may be sold
and purchasers may not be able to resell securities purchased
under this short form prospectus. This may affect the pricing of
the securities in the secondary market, the transparency and
availability of trading prices, the liquidity of the securities,
and the extent of issuer regulation. See Risk
Factors.
Our head and registered office is Suite 500,
401 9th Avenue S.W., Calgary, Alberta, T2P 4Z4.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
In this prospectus, unless otherwise specified or the context
otherwise requires, references to Canadian Pacific
Railway, us, we or our
mean Canadian Pacific Railway Company and its subsidiaries.
Unless otherwise specified, all dollar amounts contained herein
are expressed in Canadian dollars, and references to
dollars, Cdn$ or $ are to
Canadian dollars and all references to US$ are to
United States dollars.
This prospectus is part of a registration statement on
Form F-9
relating to the debt securities that we filed with the SEC.
Under the registration statement, we may, from time to time,
sell any combination of the debt securities described in this
prospectus in one or more offerings up to an aggregate principal
amount of US$1,500,000,000 or its equivalent in any other
currency. This prospectus provides you with a general
description of the debt securities that we may offer. Each time
we sell debt securities under the registration statement, we
will provide a prospectus supplement that will contain specific
information about the terms of that offering of debt securities.
The prospectus supplement may also add, update or change
information contained in this prospectus. Before you invest, you
should read both this prospectus and any applicable prospectus
supplement together with additional information described under
the heading Where You Can Find More Information.
This prospectus does not contain all of the information set
forth in the registration statement, certain parts of which are
omitted in accordance with the rules and regulations of the SEC.
Reference is made to the registration statement and the exhibits
thereto for further information with respect to Canadian Pacific
Railway and the debt securities.
Unless otherwise indicated, all financial information included
and incorporated by reference in this prospectus is determined
using Canadian generally accepted accounting principles,
referred to as Canadian GAAP. Canadian GAAP differs
from generally accepted accounting principles in the United
States, referred to as U.S. GAAP. Therefore, the
comparative consolidated financial statements incorporated by
reference in this prospectus may not be comparable to financial
statements prepared in accordance with U.S. GAAP. A discussion
of the principal differences between the financial results
calculated under Canadian GAAP and under U.S. GAAP is provided
in the notes to the annual comparative consolidated financial
statements incorporated by reference in this prospectus.
2
WHERE YOU
CAN FIND MORE INFORMATION
Canadian Pacific Railway Company is a wholly-owned subsidiary of
Canadian Pacific Railway Limited (CPRL), a publicly
traded corporation whose common shares are listed on the Toronto
Stock Exchange and the New York Stock Exchange. Pursuant to a
decision of the applicable Canadian securities regulatory
authorities, we are not subject to most Canadian continuous
disclosure requirements provided that CPRL complies with its
continuous disclosure requirements. We remain responsible for
filing material change reports upon the occurrence of a material
change in our affairs which is not also a material change in the
affairs of CPRL. The decision further permits us to incorporate
by reference in this prospectus all information or documents
that would be required to be incorporated by reference in a
short form prospectus filed by CPRL.
We and CPRL are subject to the information requirements of the
United States Securities Exchange Act of 1934, as amended (the
U.S. Exchange Act), and in accordance therewith file
reports and other information with the SEC. Under the
multijurisdictional disclosure system adopted by Canada and the
United States, such reports and other information may be
prepared in accordance with the disclosure requirements of
Canada, which requirements are different from those of the
United States. You may read any document we and CPRL furnish to
the SEC at the SECs public reference room at
Room 1580, 100 F Street, N.E., Washington, D.C., 20549.
Copies of the same documents may also be obtained from the
public reference room of the SEC at 100 F Street, N.E.,
Washington D.C., 20549 by paying a fee. Please call the SEC at
1-800-SEC-0330
or access its website at www.sec.gov for further information on
the public reference rooms. Our and CPRLs filings since
November 2002 are also electronically available from the
SECs Electronic Document Gathering and Retrieval System,
which is commonly known by the acronym EDGAR and which may be
accessed at www.sec.gov, as well as from commercial document
retrieval services.
DOCUMENTS
INCORPORATED BY REFERENCE
Under applicable law, we are permitted to incorporate by
reference in this prospectus documents which have been filed
with securities commissions in Canada, which means that we can
disclose important information to you by referring you to those
documents. Information that is incorporated by reference is an
important part of this prospectus. We incorporate by reference
the documents listed below, which were filed with the securities
commission or other similar authority in each of the provinces
and territories of Canada:
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CPRLs annual information form (the AIF) dated
February 23, 2009;
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CPRLs audited comparative consolidated financial
statements, including the notes thereto, for the year ended
December 31, 2008, together with the auditors report
thereon;
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CPRLs Managements Discussion and Analysis
(MD&A) for the year ended December 31,
2008;
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CPRLs unaudited comparative consolidated financial
statements, including the notes thereto, for the three months
ended March 31, 2009;
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CPRLs MD&A for the three months ended March 31,
2009; and
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CPRLs management proxy circular dated March 23, 2009.
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Any annual information form, audited annual consolidated
financial statements (together with the auditors report
thereon), information circular, unaudited interim consolidated
financial statements, managements discussion and analysis,
material change reports (excluding confidential material change
reports) or business acquisition reports subsequently filed by
CPRL or us with securities commissions or similar authorities in
the relevant provinces and territories of Canada after the date
of this prospectus and prior to the termination of the offering
of debt securities under any prospectus supplement shall be
deemed to be incorporated by reference into this prospectus. To
the extent that any document or information incorporated by
reference into this prospectus is included in a report that is
filed with or furnished to the SEC by CPRL or us on
Form 40-F,
20-F, 10-K,
10-Q,
8-K or
6-K (or any
respective successor form), such document or information shall
also be deemed to be incorporated by reference as an exhibit to
the registration statement relating to the debt securities of
which this prospectus forms a part.
3
Upon a new annual information form, managements discussion
and analysis and related annual financial statements being filed
by CPRL with and, where required, accepted by, the applicable
securities regulatory authorities during the currency of this
prospectus, the previous annual information form,
managements discussion and analysis, annual financial
statements and all interim financial statements and
managements discussion and analysis, material change
reports, business acquisition reports and management proxy
circulars (other than a management proxy circular relating to an
annual meeting of shareholders) filed prior to the commencement
of the then current fiscal year of CPRL will be deemed no longer
to be incorporated into this prospectus for purposes of future
offers and sales of debt securities under this prospectus. Upon
interim consolidated financial statements and the accompanying
managements discussion and analysis being filed by CPRL
with the applicable securities regulatory authorities during the
currency of this prospectus, all interim consolidated financial
statements and the accompanying managements discussion and
analysis filed prior to the new interim consolidated financial
statements shall be deemed no longer to be incorporated into
this prospectus for purposes of future offers and sales of debt
securities under this prospectus and upon a new management proxy
circular relating to an annual meeting of shareholders of CPRL
being filed by CPRL with the applicable securities regulatory
authorities during the term of this prospectus, the management
proxy circular for the preceding annual meeting of shareholders
of CPRL shall be deemed no longer to be incorporated by
reference into this prospectus for purposes of future offers and
sales of debt securities under this prospectus.
Copies of each of the documents incorporated by reference into
this prospectus may be obtained by accessing our and CPRLs
disclosure documents available through the Internet on the
Canadian System for Electronic Document Analysis and Retrieval
(SEDAR) which may be accessed at www.sedar.com or by
requesting a free copy of such documents by writing or calling
Canadian Pacific Railway at the following address and telephone
number: Canadian Pacific Railway Company, Suite 920,
401 9th Avenue S.W., Calgary, Alberta, T2P 4Z4,
Attention: Corporate Secretary,
(403) 319-6171.
Updated interest coverage ratios will be filed by CPRL quarterly
with the applicable securities regulatory authorities, including
the SEC, either as prospectus supplements or exhibits to
CPRLs unaudited interim consolidated financial statements
and audited annual consolidated financial statements and will be
deemed to be incorporated by reference in this prospectus for
the purpose of the offering of the debt securities.
All shelf information permitted under applicable laws to be
omitted from this prospectus will be contained in one or more
prospectus supplements that will be delivered to purchasers
together with this prospectus. Each prospectus supplement
containing the specific variable terms of an offering of debt
securities will be delivered to purchasers of such debt
securities together with this prospectus and will be deemed to
be incorporated by reference into this prospectus as of the date
of the prospectus supplement only for the purposes of the
offering of the debt securities to which the prospectus
supplement pertains.
Any statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such prior statement. Any statement or document so
modified or superseded shall not, except to the extent so
modified or superseded, be incorporated by reference and
constitute a part of this prospectus.
4
FORWARD
LOOKING STATEMENTS
This prospectus and the documents incorporated by reference
herein include forward-looking information and
forward-looking statements within the meaning of
securities laws, including the safe harbour
provisions of the Securities Act (Ontario), the
Securities Act (Alberta), the United States Private
Securities Litigation Reform Act of 1995, Section 21E of
the U.S. Exchange Act and Section 27A of the United States
Securities Act of 1933, as amended. All forward-looking
information and forward-looking statements are based on our and
CPRLs current beliefs as well as assumptions made by and
information currently available to us and CPRL. Forward-looking
information and forward-looking statements typically contain
statements such as anticipate, believe,
expect, plan or similar words suggesting
future outcomes. Forward-looking statements in or incorporated
by reference into this prospectus include, but are not limited
to, statements with respect to: our and CPRLs revenues and
results of operations; our and CPRLs strategic plan;
quarterly and seasonal trends; our and CPRLs capital
commitments and expenditures; our and CPRLs future cash
flows and the availability of other sources of liquidity;
interest rates and any hedging programs we or CPRL undertake in
respect thereof; fuel prices and any hedging programs we or CPRL
undertake in respect thereof; the impact of changes in
accounting policy; the outcome of contract negotiations
(including in respect of government contracts); our and
CPRLs pension plan funding and future contributions; the
outcome of litigation; the success and cost of environmental
initiatives and remediation programs; the success and impact of
our and CPRLs restructuring initiatives; and our and
CPRLs competitive environment.
By its nature, our and CPRLs forward looking information
involves numerous assumptions, inherent risks and uncertainties,
including but not limited to the following factors:
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changes in business strategies;
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general North American and global economic and business
conditions including the potential adverse impact of the current
global credit crisis;
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results of the contract renewal process with our largest
customer;
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effects of changes in market conditions and discount rates on
the financial position of pension plans and the levels of
required pension fund contributions;
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reduction in demand for metallurgical coal and any resulting
curtailment of the shipment of coal;
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impact of labour relations of certain of our customers and
implications to their potash operations;
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the availability and price of energy commodities;
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the effects of competition and pricing pressures;
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industry capacity;
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shifts in market demands;
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changes in laws and regulations, including regulation of rates;
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changes in taxes and tax rates;
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potential increases in maintenance and operating costs;
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uncertainties of litigation;
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labour disputes;
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risks and liabilities arising from derailments;
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transportation of dangerous goods;
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timing of completion of capital and maintenance projects;
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currency and interest rate fluctuations;
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various events that could disrupt operations, including severe
weather conditions;
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security threats and governmental response to them; and
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technological changes.
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The risks and uncertainties of our and CPRLs business,
including those discussed above and incorporated by reference in
this prospectus and as described under Risk Factors
and elsewhere herein, could cause our and CPRLs actual
results and experience to differ materially from the anticipated
results or other expectations expressed. In addition, we base
forward-looking information and forward-looking statements on
assumptions about future events, which may not prove to be
accurate.
In light of these risks, uncertainties and assumptions,
prospective investors should not place undue reliance on
forward-looking information and forward-looking statements and
should be aware that events described in the forward-looking
information and forward-looking statements set out in this
prospectus and the documents incorporated by reference in this
prospectus may not occur.
We cannot assure prospective investors that our future results,
levels of activity and achievements will occur as we expect, and
neither we nor any other person assumes responsibility for the
accuracy and completeness of the forward-looking information and
forward-looking statements. Except as required by law, we have
no obligation to update or revise any forward-looking
information or forward-looking statement, whether as a result of
new information, future events or otherwise.
6
CANADIAN
PACIFIC RAILWAY COMPANY
We are one of Canadas oldest corporations and were North
Americas first transcontinental railway. From our
inception over 125 years ago, we have developed into a
fully integrated and technologically advanced Class I
railway (a railway earning a minimum of
US$319.3 million in revenues annually) providing rail and
intermodal freight transportation services over a 15,500 mile
network serving the principal business centres of Canada, from
Montreal, Quebec, to Vancouver, B.C., and the U.S. Midwest and
Northeast regions. We are a wholly-owned subsidiary of CPRL. Our
head office and registered office is located at Suite 500,
401 9th Avenue S.W., Calgary, Alberta, T2P 4Z4.
USE OF
PROCEEDS
The net proceeds from the issuance from time to time of debt
securities will be the issue price less any fees or commissions
paid in connection therewith. Such net proceeds cannot be
estimated as of the date of this prospectus, as the amount will
depend on the extent to which debt securities are issued during
the 25-month
period that this prospectus remains valid. The maximum aggregate
amount of the debt securities will not exceed US$1,500,000,000
(or the equivalent amount in other currencies based on the
applicable exchange rate at the time of the offering). Such
amount shall be calculated, in the case of interest bearing debt
securities, on the basis of the principal amount of debt
securities issued by us and, in the case of non-interest bearing
debt securities, on the basis of the gross proceeds received by
us.
Unless otherwise indicated in an applicable prospectus
supplement relating to a series of debt securities, we will use
the net proceeds we receive from the sale of the debt securities
for general corporate purposes, which may include financing our
capital expenditure program and working capital requirements. We
may also use such proceeds for the repayment of indebtedness or
to provide funding to CPRL for its general corporate purposes.
The amount of net proceeds to be used for any such purpose will
be set forth in the applicable prospectus supplement. We may,
from time to time, issue debt instruments and incur additional
indebtedness other than through the issue of debt securities
pursuant to this prospectus.
DESCRIPTION
OF DEBT SECURITIES
In this section only, we, us or
our refer only to Canadian Pacific Railway Company
without any of its subsidiaries through which it operates.
The following description sets forth certain general terms and
provisions of the debt securities. The particular terms and
provisions of the series of debt securities offered by any
prospectus supplement, and the extent to which the general terms
and provisions described below may apply thereto, will be
described in the applicable prospectus supplement, which may
provide information that is different from this prospectus.
The debt securities will be issued under a trust indenture (the
Indenture) dated May 8, 2007 entered into
between us and The Bank of New York, as trustee (the
Trustee). A copy of the Indenture has been filed
with the SEC. Debt securities may also be issued under new
indentures between us and a trustee or trustees as will be
discussed in a prospectus supplement for such debt securities.
The following statements with respect to the Indenture and the
Securities (as hereinafter defined) are brief summaries of the
material provisions of the Indenture. However, it is the
Indenture, and not this summary, that governs your rights as a
holder of the Securities. Wherever particular sections or
defined terms of the Indenture are referred to, these sections
or defined terms are incorporated herein by reference as part of
the statement made, and the statement is qualified in its
entirety by this reference. The term Securities, as
used under this caption, refers to all securities issued under
the Indenture, including the debt securities. Prospective
investors should rely on information in the applicable
prospectus supplement if it is different from the following
information.
General
The Indenture does not limit the aggregate principal amount of
Securities (which may include debentures, notes and other
evidences of indebtedness) which may be issued thereunder, and
Securities may be issued
7
thereunder from time to time in one or more series and may be
denominated and payable in foreign currencies. The Securities
offered pursuant to this prospectus will be issued in an amount
up to US$1,500,000,000 or the equivalent in other currency or
units based on other foreign currencies. The Indenture also
permits us to increase the principal amount of any series of
Securities previously issued and to issue that increased
principal amount.
The applicable prospectus supplement will set forth the
following terms relating to the debt securities offered thereby
(the Offered Securities):
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the specific designation of the Offered Securities;
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any limit on the aggregate principal amount of the Offered
Securities;
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the extent and manner, if any, to which payment on or in respect
of the Offered Securities will be senior or will be subordinated
to the prior payment of our other liabilities and obligations;
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the percentage or percentages of principal amount at which the
Offered Securities will be issued;
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the date or dates, if any, on which the Offered Securities will
mature and the portion (if less than all of the principal
amount) of the Offered Securities to be payable upon declaration
of acceleration of maturity;
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the rate or rates (which may be fixed or variable) at which the
Offered Securities will bear interest, if any, the date or dates
from which that interest will accrue and on which that interest
will be payable and the regular record dates for any interest
payable on the Offered Securities;
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any mandatory or optional redemption or sinking fund provisions,
including the period or periods within which, the price or
prices at which and the terms and conditions upon which the
Offered Securities may be redeemed or purchased at our option or
otherwise;
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whether the Offered Securities will be issuable in registered
form or bearer form or both, and, if issuable in bearer form,
the restrictions as to the offer, sale and delivery of the
Offered Securities in bearer form and as to exchanges between
registered and bearer form;
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whether the Offered Securities will be issuable in the form of
one or more global securities and, if so, the identity of the
depository for those global securities;
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the denominations in which any of the Offered Securities which
are in registered form will be issuable, if other than
denominations of US$1,000 and any multiple thereof, and the
denominations in which any of the Offered Securities which are
in bearer form will be issuable, if other than the denomination
of US$1,000;
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each office or agency where the principal of and any premium and
interest on the Offered Securities will be payable, and each
office or agency where the Offered Securities may be presented
for registration of transfer or exchange;
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if other than United States dollars, the foreign currency or the
units based on or relating to foreign currencies in which the
Offered Securities are denominated and/or in which the payment
of the principal of and any premium and interest on the Offered
Securities will or may be payable;
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whether and under what circumstances we will pay Additional
Amounts on the Offered Securities of such series in respect of
certain taxes (and the terms of any such payment) and, if so,
whether we will have the option to redeem the Offered Securities
of such series rather than pay the Additional Amounts (and the
terms of any such option);
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any index pursuant to which the amount of payments of principal
of and any premium and interest on the Offered Securities will
or may be determined;
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any applicable Canadian and U.S. federal income tax
considerations; and
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any other terms of the Offered Securities, including covenants
and Events of Default relating solely to the Offered Securities
or any covenants or Events of Default generally applicable to
the Securities which are not to apply to the Offered Securities.
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Unless otherwise indicated in the applicable prospectus
supplement, the Indenture does not afford the holders the right
to tender Securities to us for repurchase, or provide for any
increase in the rate or rates of interest per annum at which the
Securities will bear interest.
Securities may be issued under the Indenture bearing no interest
and may be offered and sold at a discount below their stated
principal amount. The Canadian and U.S. federal income tax
consequences and other special considerations applicable to
those discounted Securities or other Securities offered and sold
at par which are treated as having been issued at a discount for
Canadian and/or U.S. federal income tax purposes will be
described in the prospectus supplement relating thereto.
Ranking
Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will be our unsecured
obligations and will rank pari passu with all our other
unsecured and unsubordinated debt from time to time outstanding
and pari passu with other Securities issued under the Indenture.
We conduct a substantial portion of our business through
corporate and partnership subsidiaries. The debt securities will
be structurally subordinated to all existing and future
liabilities, including trade payables and other indebtedness, of
any of our corporate or partnership subsidiaries.
Debt
Securities in Global Form
Unless otherwise indicated in the applicable prospectus
supplement, debt securities of a particular series will be
issued in the form of one or more global securities
which will be registered in the name of and be deposited with a
depository, or its nominee, each of which will be identified in
the prospectus supplement relating to that series. Unless and
until exchanged, in whole or in part, for Securities in
definitive form, a global security may not be transferred except
as a whole by the depository for a global security to a nominee
of that depository, by a nominee of that depository to that
depository or another nominee of that depository or by that
depository or any nominee of that depository to a successor of
that depository or a nominee of a successor of that depository.
The specific terms of the depository arrangement with respect to
any portion of a particular series of Securities to be
represented by a global security will be described in the
prospectus supplement relating to that series. We anticipate
that the following provisions will apply to all depository
arrangements.
Upon the issuance of a global security, the depository therefor
or its nominee will credit, on its book entry and registration
system, the respective principal amounts of the Securities
represented by that global security to the accounts of those
persons having accounts with that depository or its nominee
(participants) as shall be designated by the
underwriters, investment dealers or agents participating in the
distribution of those Securities or by us if those Securities
are offered and sold directly by us. Ownership of beneficial
interests in a global security will be limited to participants
or persons that may hold beneficial interests through
participants. Ownership of beneficial interests in a global
security will be shown on, and the transfer of the ownership of
those beneficial interests will be effected only through,
records maintained by the depository therefor or its nominee
(with respect to beneficial interests of participants) or by
participants or persons that hold through participants (with
respect to interests of persons other than participants). The
laws of some states in the United States require certain
purchasers of securities to take physical delivery thereof in
definitive form. These depository arrangements and these laws
may impair the ability to transfer beneficial interests in a
global security.
So long as the depository for a global security or its nominee
is the registered owner thereof, that depository or its nominee,
as the case may be, will be considered the sole owner or holder
of the Securities represented by that global security for all
purposes under the Indenture. Except as provided below, owners
of beneficial interests in a global security will not be
entitled to have Securities of the series represented by that
global security registered in their names, will not receive or
be entitled to receive physical delivery of Securities of that
series in definitive form and will not be considered the owners
or holders of those Securities under the Indenture.
Principal, premium, if any, and interest payments on a global
security registered in the name of a Depository or its nominee
will be made to that depository or nominee, as the case may be,
as the registered owner of that global security. None of us, the
Trustee or any paying agent for Securities of the series
represented by that global security
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will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
interests in that global security or for maintaining,
supervising or reviewing any records relating to those
beneficial interests.
We expect that the depository for a global security or its
nominee, upon receipt of any payment of principal, premium or
interest, will immediately credit participants accounts
with payments in amounts proportionate to their respective
beneficial interests in the principal amount of that global
security as shown on the records of that depository or its
nominee. We also expect that payments by participants to owners
of beneficial interests in that global security held through
those participants will be governed by standing instructions and
customary practices, as is the case with securities held for the
accounts of customers registered in street name, and
will be the responsibility of those participants.
If the depository for a global security representing Securities
of a particular series is at any time unwilling or unable to
continue as depository, or if the depository is no longer
eligible to continue as depository, and a successor depository
is not appointed by us within 90 days, or if an Event of
Default described in clauses (a) or (b) of the first
sentence under Events of Default below with respect
to a particular series of Securities has occurred and is
continuing, we will issue securities of that series in
definitive form in exchange for that global security. In
addition, we may at any time and in our sole discretion
determine not to have the Securities of a particular series
represented by one or more global securities and, in that event,
will issue securities of that series in definitive form in
exchange for all of the global securities representing
securities of that series.
Debt
Securities in Definitive Form
If indicated in the applicable prospectus supplement, the
Securities may be issued in fully registered form without
coupons and in denominations of US$1,000 or any integral
multiple thereof. Securities may be presented for exchange and
debt securities may be presented for registration of transfer in
the manner, at the places and, subject to the restrictions set
forth in the Indenture and in the applicable prospectus
supplement, without service charge, but upon payment of any
taxes or other governmental charges due in connection therewith.
We have appointed the Trustee as Security Registrar. Securities
in bearer form and the coupons appertaining thereto, if any,
will be transferable by delivery.
Unless otherwise indicated in the applicable prospectus
supplement, payment of the principal of and any premium and
interest on Securities (other than a global security) will be
made at the office or agency of the Trustee at 101 Barclay
Street, 21st Floor West, New York, New York, 10286, except that,
at our option, payment of any interest may be made (a) by
cheque mailed to the address of the Person entitled thereto as
that Persons address will appear in the Security Register
or (b) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Security Register.
Negative
Pledge
The Indenture includes a covenant of ours to the effect that, so
long as any of the Securities remain outstanding, we will not,
and will not permit any Subsidiary to, create, assume or
otherwise have outstanding any Security Interest, except for
Permitted Encumbrances, on or over any of our present or future
Railway Properties or any of our Subsidiaries or on any shares
in the capital stock of any Railroad Subsidiary securing any
Indebtedness of any Person without also at the same time or
prior thereto securing equally and ratably with such other
Indebtedness all of the Securities then outstanding under the
Indenture.
Certain
Definitions
Set forth below is a summary of certain of the defined terms
used in the Indenture. Reference is made to the Indenture for
the full definitions of all such terms.
The term Borrowed Money means Indebtedness in
respect of moneys borrowed (including interest and other charges
in respect thereof) and moneys raised by the issue of notes,
bonds, debentures or other evidences of moneys borrowed.
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The term Capital Lease Obligation means the
obligation of a Person, as lessee, to pay rent or other amounts
to the lessor under a lease of real or personal property which
is required to be classified and accounted for as a capital
lease on a consolidated balance sheet of such Person in
accordance with GAAP.
The term Consolidated Net Tangible Assets
means the total amount of assets determined on a consolidated
basis after deducting therefrom:
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(a)
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all current liabilities (excluding any Indebtedness classified
as a current liability and any current liabilities which are by
their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of
which the amount thereof is being computed);
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(b)
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all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles; and
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(c)
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appropriate adjustments on account of minority interests of
other Persons holding stock of our Subsidiaries,
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all as set forth on our most recent consolidated balance sheet
and computed in accordance with GAAP.
The term GAAP means generally accepted
accounting principles which are in effect from time to time in
Canada (or, if we hereafter determine to prepare our
consolidated financial statements in accordance with generally
accepted accounting principles which are in effect from time to
time in the United States, such principles).
The term Indebtedness means and includes all
items of indebtedness which, in accordance with GAAP, would be
included in determining total liabilities as shown on the
liability side of a balance sheet as at the date as of which
Indebtedness is to be determined, but in any event including,
without limitation, (1) obligations in respect of
indebtedness for Borrowed Money secured by any Security Interest
existing on property owned subject to such Security Interest,
whether or not the obligations secured thereby shall have been
assumed, and (2) guarantees and other contingent
obligations in respect of, or any obligations to purchase or
otherwise acquire or service, indebtedness of any other Person.
The term Permitted Encumbrances means any of
the following:
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(a)
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any Security Interest existing as of the date of the first
issuance by us of the Securities issued pursuant to the
Indenture, or arising thereafter pursuant to contractual
commitments entered into prior to such issuance, including
without limitation, any of our outstanding Perpetual 4%
Consolidated Debenture Stock, whether issued, pledged or vested
in trust;
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(b)
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any Security Interest in favor of us or any of our wholly-owned
Subsidiaries;
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(c)
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any Security Interest existing on the property of any Person at
the time such Person becomes a Subsidiary, or arising thereafter
pursuant to contractual commitments entered into prior to and
not in contemplation of such Person becoming a Subsidiary;
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(d)
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any Security Interest on property of a Person which Security
Interest exists at the time such Person is merged into, or
amalgamated or consolidated with, us or a Subsidiary, or such
property is otherwise acquired by us or a Subsidiary, provided
that such Security Interest does not extend to property owned by
us or such Subsidiary immediately prior to such merger,
amalgamation, consolidation or acquisition;
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(e)
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any Security Interest already existing on property acquired
(including by way of lease) by us or any of our Subsidiaries at
the time of such acquisition;
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(f)
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any Security Interest securing any Indebtedness incurred in the
ordinary course of business and for the purpose of carrying on
the same, repayable on demand or maturing within 12 months
of the date when such Indebtedness is incurred or the date of
any renewal or extension thereof;
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(g)
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any Security Interest in respect of (i) liens for taxes and
assessments not at the time overdue or any liens securing
workmens compensation assessments, unemployment insurance
or other social security obligations; provided, however, that if
any such liens, duties or assessments are then overdue, we or
the Subsidiary, as the case may be, shall be prosecuting an
appeal or proceedings for review with respect
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to which it shall be entitled to or shall have secured a stay in
the enforcement of any such obligations, (ii) any lien for
specified taxes and assessments which are overdue but the
validity of which is being contested at the time by us or the
Subsidiary, as the case may be, in good faith, (iii) any
liens or rights of distress reserved in or exercisable under any
lease for rent and for compliance with the terms of such lease,
(iv) any obligations or duties, affecting our property or
that of a Subsidiary to any municipality or governmental,
statutory or public authority, with respect to any franchise,
grant, license or permit and any defects in title to structures
or other facilities arising from the fact that such structures
or facilities are constructed or installed on lands held by us
or the Subsidiary under government permits, leases, licenses or
other grants, (v) any deposits or liens in connection with
contracts, bids, tenders or expropriation proceedings, surety or
appeal bonds, costs of litigation when required by law, public
and statutory obligations and liens or claims incidental to
current construction or operations including but not limited to,
builders, mechanics, laborers,
materialmens, warehousemens, carriers and
other similar liens, (vi) the right reserved to or vested
in any municipality or governmental or other public authority by
any statutory provision or by the terms of any lease, license,
franchise, grant or permit to terminate any such lease, license,
franchise, grant or permit or to require annual or other
periodic payments as a condition to the continuance thereof,
(vii) any Security Interest the validity of which is being
contested at the time by us or a Subsidiary in good faith or
payment of which has been provided for by creation of a reserve
in an amount in cash sufficient to pay the same in full,
(viii) any easements,
rights-of-way
and servitudes (including, without in any way limiting the
generality of the foregoing, easements,
rights-of-way
and servitudes for railways, sewers, dykes, drains, gas and
water mains or electric light and power or telephone conduits,
poles, wires and cables) and minor defects, or irregularities of
title that, in our opinion, will not in the aggregate materially
and adversely impair the use or value of the land concerned for
the purpose for which it is held by us or the Subsidiary, as the
case may be, (ix) any security to a public utility or any
municipality or governmental or other public authority when
required by such utility or other authority in connection with
our operations or the operations of our Subsidiary, as the case
may be, (x) any liens and privileges arising out of
judgments or awards with respect to which we or the Subsidiary
shall be prosecuting an appeal or proceedings for review and
with respect to which it shall be entitled to or shall have
secured a stay of execution pending such appeal or proceedings
for review, and (xi) reservations, limitations, provisos
and conditions, if any, expressed in or affecting any grant of
real or immoveable property or any interest therein;
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(h)
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any Security Interest in respect of any Purchase Money
Obligation;
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(i)
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any extension, renewal, alteration or replacement (or successive
extensions, renewals, alterations or replacements) in whole or
in part, of any Security Interest referred to in the foregoing
clauses (a) through (h) inclusive, provided that the
principal amount of the Indebtedness secured thereby on the date
of such extension, renewal, alteration or replacement is not
increased and the Security Interest is limited to the property
or other assets which secured the Security Interest so extended,
renewed, altered or replaced (plus improvements on such property
or other assets or the proceeds thereof); and
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(j)
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any Security Interest that would otherwise be prohibited
(including any extensions, renewals, alterations or replacements
thereof) provided that the aggregate Indebtedness outstanding
and secured under this clause (j) does not (calculated at
the time of the granting of the Security Interest) exceed an
amount equal to 10% of Consolidated Net Tangible Assets.
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The term Person means any individual,
corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
The term Purchase Money Obligation means any
monetary obligation (including a Capital Lease Obligation)
created, assumed or incurred prior to, at the time of, or within
180 days after, the acquisition (including by way of
lease), construction or improvement of any real or tangible
personal property, for the purpose of financing all or any part
of the purchase price or lease payments in respect thereof,
provided that the principal amount of such obligation may not
exceed the unpaid portion of the purchase price or lease
payments, as applicable, and further provided that any security
given in respect of such obligation shall not extend to any
property other than the property
12
acquired in connection with which such obligation was created or
assumed and fixed improvements, if any, thereto or erected or
constructed thereon and the proceeds thereof.
The term Railroad Subsidiary means a
Subsidiary whose principal assets are Railway Properties.
The term Railway Properties means all main
and branch lines of railway located in Canada or the United
States, including all real property used as the right of way for
such lines.
The term Security Interest means any security
by way of an assignment, mortgage, charge, pledge, lien,
encumbrance, title retention agreement or other security
interest whatsoever, howsoever created or arising, whether
absolute or contingent, fixed or floating, perfected or not, but
not including any security interest in respect of a lease which
is not a Capital Lease Obligation or any encumbrance that may be
deemed to arise solely as a result of entering into an agreement
not in violation of the terms of the Indenture to sell or
otherwise transfer assets or property.
The term Shareholders Equity means,
with respect to any Person, at any date, the aggregate of the
dollar amount of outstanding share capital, the amount, without
duplication, of any surplus, whether contributed or capital, and
retained earnings, subject to any currency translation
adjustment, all as set forth in such Persons most recent
annual consolidated balance sheet.
The term Significant Subsidiary means a
Subsidiary that constitutes a significant subsidiary
as defined in
Rule 1-02
of
Regulation S-X
of the U.S. Exchange Act, as amended.
The term Subsidiary means any corporation or
other Person of which there are owned, directly or indirectly,
by or for us or by or for any corporation or other Person in
like relation to us, Voting Shares or other interests which, in
the aggregate, entitle the holders thereof to cast more than 50%
of the votes which may be cast by the holders of all outstanding
Voting Shares of such first mentioned corporation or other
Person for the election of its directors or, in the case of any
Person which is not a corporation, Persons having similar powers
or (if there are no such Persons) entitle the holders thereof to
more than 50% of the income or capital interests (however
called) thereon and includes any corporation in like relation to
a Subsidiary.
The term Voting Shares means shares of
capital stock of any class of a corporation and other interests
of any other Persons having under all circumstances the right to
vote for the election of the directors of such corporation or in
the case of any Person which is not a corporation, Persons
having similar powers or (if there are no such Persons) income
or capital interests (however called), provided that, for the
purpose of this definition, shares or other interests which only
carry the right to vote conditionally on the happening of an
event shall not be considered Voting Shares whether or not such
event shall have happened.
Consolidation,
Merger, Amalgamation and Sale of Assets
We shall not enter into any transaction (whether by way of
consolidation, amalgamation, merger, transfer, sale or
otherwise) whereby all or substantially all of our assets would
become the property of any other Person (the
Successor) unless (a) the Successor shall,
prior to or contemporaneously with the consummation of that
transaction, execute those instruments, which may include a
supplemental indenture, and do those things, if any, as shall be
necessary or advisable to establish that upon the consummation
of that transaction (i) the Successor will have assumed all
of our covenants and obligations under the Indenture in respect
of the Securities of every series, and (ii) the Securities
of every series will be valid and binding obligations of the
Successor entitling the holders thereof, as against the
Successor Corporation, to all the rights of holders of
Securities under the Indenture; (b) the Successor is a
corporation, company, partnership, or trust organized and
validly existing under the laws of Canada or any province
thereof or of the United States, any state thereof or the
District of Columbia and (c) immediately before and after
giving effect to 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 occurred and be continuing.
Provision
of Financial Information
We will file with the Trustee, within 15 days after CPRL is
required to file them with the SEC, copies, which may be in
electronic format, of the annual reports and of the information,
documents and other reports (or copies of
13
such portions of any of the foregoing as the SEC may from time
to time by rules and regulations prescribe) which CPRL may be
required to file with the SEC pursuant to Section 13 or
Section 15(d) of the U.S. Exchange Act. Notwithstanding
that CPRL may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the U.S. Exchange
Act, as amended, or otherwise report on an annual and quarterly
basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the SEC, we
will provide the Trustee:
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within 140 days (or such longer period as the Trustee in
its discretion may consent to) after the end of each fiscal
year, the information required to be contained in CPRLs
annual reports on
Form 20-F
or
Form 40-F
as applicable (or any successor form); and
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within 60 days (or such longer period as the Trustee in its
discretion may consent to) after the end of each of the first
three fiscal quarters of each fiscal year, the information
required to be contained in CPRLs reports on
Form 6-K
(or any successor form) which, regardless of applicable
requirements, will, at a minimum, contain such information
required to be provided in quarterly reports under the laws of
Canada or any province thereof to security holders of a company
with securities listed on the Toronto Stock Exchange, whether or
not CPRL has any of its securities so listed.
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Events of
Default
The occurrence of any of the following events with respect to
the Securities of any series will constitute an Event of
Default with respect to the Securities of that series:
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(a)
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default by us in payment of the principal of any of the
Securities of that series when the same becomes due under any
provision of the Indenture or of those Securities;
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(b)
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default by us in payment of any interest due on any of the
Securities of that series and continuance of that default for a
period of 30 days;
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(c)
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default by us in observing or performing any other of our
covenants or conditions contained in the Indenture or in the
Securities of that series and continuance of that default for a
period of 60 days after written notice as provided in the
Indenture;
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(d)
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default by us or any Subsidiary in payment of the principal of,
premium, if any, or interest on any Indebtedness having an
outstanding principal amount in excess of the greater of
$100 million and 2% of our Shareholders Equity in the
aggregate at the time of default or default in the performance
of any other covenant of ours or any Subsidiary contained in any
instrument under which that Indebtedness is created or issued
and the holders thereof, or a trustee, if any, for those
holders, declare that Indebtedness to be due and payable prior
to the stated maturities of that Indebtedness (accelerated
Indebtedness), and such acceleration shall not be
rescinded or annulled, or such default under such instrument
shall not be remedied or cured, whether by payment or otherwise,
or waived by the holders of such Indebtedness, provided that
(i) if such accelerated Indebtedness is the result of an
event of default which is not related to the failure to pay
principal or interest on the terms, at the times and on the
conditions set forth in such instrument, it will not be
considered an Event of Default under this clause (d) until
30 days after such acceleration, or (ii) if such
accelerated Indebtedness shall occur as a result of such failure
to pay principal or interest or as a result of an event of
default which is related to the failure to pay principal or
interest on the terms, at the times, and on the conditions set
out in any such indenture or instrument, then (A) if such
accelerated Indebtedness is, by its terms, non recourse to us or
the Railroad Subsidiaries, it shall not be considered an Event
of Default; or (B) if such accelerated Indebtedness is
recourse to us or the Railroad Subsidiaries, any requirement in
connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any
further condition, event or act under such other indenture or
instrument in connection with such failure to pay principal or
an event of default shall be applicable together with an
additional seven days before being considered an Event of
Default;
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(e)
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certain events of bankruptcy, insolvency, winding up,
liquidation or dissolution relating to us or any Significant
Subsidiary; or
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(f)
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any event of default provided with respect to that series.
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If an Event of Default described in clause (a) or
(b) above occurs and is continuing with respect to
Securities of any series, unless the principal of all of the
Securities of that series shall have already become due and
payable, the Trustee may, in its discretion, and shall upon
request in writing made by the holders of not less than 25% in
aggregate principal amount of the Securities of that series then
outstanding, declare the principal of (and premium, if any, on)
all the Securities of that series then outstanding and the
interest accrued thereon and all other money, if any, owing
under the provisions of the Indenture in respect of those
Securities to be due and payable immediately on demand. If an
Event of Default described in clause (c) or (f) above
occurs and is continuing with respect to the Securities of one
or more series, unless the principal of all of the Securities of
the affected series shall have already become due and payable,
the Trustee may, in its discretion, and shall upon request 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 (voting as one class), declare the principal of
(and premium, if any, on) all the Securities of all the affected
series then outstanding and the interest accrued thereon and all
other money, if any, owing under the provisions of the Indenture
in respect of those Securities to be due and payable immediately
on demand. If an Event of Default described in clause
(d) or (e) above occurs and is continuing, unless the
principal of all Securities then outstanding shall have already
become due and payable, the Trustee may, in its discretion, and
shall upon request in writing made by the holders of not less
than 25% in aggregate principal amount of all the Securities
then outstanding (voting as one class), declare the principal of
(and premium, if any, on) all the Securities then outstanding
and the interest accrued thereon and all other money, if any,
owing under the provisions of the Indenture in respect of those
Securities to be due and payable immediately on demand. Upon
certain conditions, any declaration of this kind may be
cancelled if all Events of Default with respect to the
Securities of all those affected series then outstanding shall
have been cured or waived as provided in the Indenture by the
holders of not less than a majority in aggregate principal
amount of the Securities of the affected series then outstanding
(voting as one class, except in the case of Events of Default
described in clauses (a) and (b) of the first sentence
of the preceding paragraph, as to which each series so affected
will vote as a separate class). See Modification and
Waiver below.
Reference is made to the applicable prospectus supplement or
supplements relating to any series of original issue discount
Securities for the particular provisions relating to the
acceleration of a portion of the principal amount thereof upon
the occurrence and continuance of an Event of Default with
respect thereto.
The Indenture provides that the Trustee will be under no
obligation to exercise any of its rights or powers under the
Indenture at the request or direction of the holders, unless
those holders shall have provided to the Trustee reasonable
indemnity. Subject to those provisions for indemnity and certain
other limitations contained in the Indenture, the holders of a
majority in aggregate principal amount of the Securities of all
affected series then outstanding (voting as one class) will have
the right to sanction or 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 those affected series.
The Indenture provides that no holder of the Securities of any
series will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless
(a) that holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to
the Securities of that series, (b) the holders of not less
than 25% in aggregate principal amount of the Securities of all
affected series then outstanding (voting as one class) shall
have made written request, and provided reasonable indemnity, to
the Trustee to institute that proceeding, (c) the Trustee
shall not have received from the holders of a majority in
aggregate principal amount of the Securities of all affected
series then outstanding (voting as one class) a direction
inconsistent with that request and (d) the Trustee shall
have failed to institute that proceeding within 60 days
after that notification, request and offer of indemnity.
However, the holder of any Security will have an absolute right
to receive payment of the principal of and any premium and
interest on that Security on or after the due dates expressed in
that Security and to institute suit for the enforcement of any
of these payments. The Indenture requires us to furnish to the
Trustee annually an officers certificate as to our
compliance with certain covenants, conditions or other
requirements contained in the Indenture and as to any
non-compliance therewith.
15
The Indenture provides that the Trustee may withhold notice to
the holders of the Securities of one or more series of any
default affecting those series (except defaults as to payment of
principal or interest) if it, in good faith, considers that
withholding to be in the best interests of the holders of the
Securities of those series.
Additional
Amounts
All payments made by us under or with respect to the debt
securities will be made free and clear of and without
withholding or deduction for or on account of any present or
future tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the
Government of Canada or of any province or territory thereof or
by any authority or agency therein or thereof having power to
tax (hereinafter Canadian Taxes), unless we are
required to withhold or deduct Canadian Taxes by law or by the
interpretation or administration thereof. If we are so required
to withhold or deduct any amount for or on account of Canadian
Taxes from any payment made under or with respect to the debt
securities, we will pay as additional interest such additional
amounts (Additional Amounts) as may be necessary so
that the net amount received by each holder after such
withholding or deduction (and after deducting any Canadian Taxes
on such Additional Amounts) will not be less than the amount the
holder would have received if such Canadian Taxes had not been
withheld or deducted. However, no Additional Amounts will be
payable with respect to a payment made to a holder (such holder,
an Excluded Holder) in respect of the beneficial
owner thereof:
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(a)
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with which we do not deal at arms length (within the
meaning of the Income Tax Act (Canada)) at the time of
making such payment;
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(b)
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which is subject to such Canadian Taxes by reason of the holder
being a resident, domicile or national of, or engaged in
business or maintaining a permanent establishment or other
physical presence in or otherwise having some connection with
Canada or any province or territory thereof otherwise than by
the mere holding of debt securities or the receipt of payments
thereunder; or
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(c)
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which is subject to such Canadian Taxes by reason of the
holders failure to comply with any certification,
identification, information, documentation or other reporting
requirements if compliance is required by law, regulation,
administrative practice or an applicable treaty as a
precondition to exemption from, or a reduction in the rate of
deduction or withholding of, such Canadian Taxes.
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We will also:
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(a)
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make such withholding or deduction; and
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(b)
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remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
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We will furnish to the holders of the debt securities, within
30 days after the date the payment of any Canadian Taxes is
due pursuant to applicable law, certified copies of tax receipts
or other documents evidencing such payment by us.
We will indemnify and hold harmless each holder (other than an
Excluded Holder) and upon written request reimburse each such
holder for the amount of:
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(a)
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any Canadian Taxes so levied or imposed and paid by such holder
as a result of payments made under or with respect to the debt
securities;
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(b)
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any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto; and
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(c)
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any Canadian Taxes imposed with respect to any reimbursement
under clause (a) or (b) above, but excluding any such
Canadian Taxes on such holders net income.
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In any event, no Additional Amounts or indemnity will be payable
in excess of the Additional Amounts or indemnity which would be
required if the holder of the debt security was a resident of
the United States for purposes of the Canada-U.S. Tax Convention
(1980), as amended.
Wherever in the Indenture there is mentioned, in any context,
the payment of principal (and premium, if any), interest or any
other amount payable under or with respect to a Security, such
mention shall be deemed to include
16
mention of the payment of Additional Amounts to the extent that,
in such context, Additional Amounts are, were or would be
payable in respect thereof.
Tax
Redemption
The debt securities will be subject to redemption in whole, but
not in part, at our option, at any time, on not less than 30 nor
more than 60 days prior written notice, at 100% of
the principal amount, together with accrued interest thereon to
the redemption date, in the event we determine that it is
probable that we have become or would become obligated to pay,
on the next date on which any amount would be payable with
respect to the debt securities, any Additional Amounts as a
result of an amendment to or change in the laws (including any
regulations promulgated thereunder) of Canada (or any political
subdivision or taxing authority thereof or therein), or any
amendment to or change in any official position regarding the
application or interpretation of such laws or regulations, which
change is announced or becomes effective on or after the date of
this prospectus.
Modification
and Waiver
The Indenture permits us and the Trustee to enter into
supplemental indentures without the consent of the holders of
the Securities to, among other things: (a) secure the
Securities of one or more series, (b) evidence the
assumption by the Successor of our covenants and obligations,
under the Indenture and the Securities then outstanding,
(c) add covenants or Events of Default for the benefit of
the holders of one or more series of the Securities,
(d) cure any ambiguity or correct or supplement any
defective provision in the Indenture which correction will not
be prejudicial to the interests of the holders of the Securities
in any material respect, (e) establish the form and terms
of the Securities of any series, (f) evidence the
acceptance of appointment by a successor Trustee, and
(g) make any other modifications which will not be
prejudicial to the interests of the holders of the Securities in
any material respect.
The Indenture also permits us and the Trustee, with the consent
of the holders of a majority in aggregate principal amount of
the Securities of each series then outstanding and affected
(voting as one class), to add any provisions to, or change in
any manner or eliminate any of the provisions of, the Indenture
or modify in any manner the rights of the holders of the
Securities of each such affected series; provided, however, that
we and the Trustee may not, among other things, without the
consent of the holder of each Security then outstanding and
affected thereby: (a) change the stated maturity of the
principal amount of, or any installment of the principal of or
the interest on, that Security; (b) reduce the principal
amount of or the rate of interest on or any premium payable upon
the redemption of that Security; (c) reduce the amount of
principal of an original issue discount Security payable upon
acceleration of the maturity thereof; (d) change the place
or currency of payment of the principal of or any premium or
interest on that Security; (e) impair the right to
institute suit for the enforcement of payment of this kind with
respect to that Security on or after the stated maturity
thereof; or (f) reduce the percentage in principal amount
of the outstanding Securities of the affected series, the
consent of whose holders is required for modification or
amendment of the Indenture, or for any waiver with respect to
defaults, breaches, Events of Default or declarations of
acceleration.
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 (voting as one class) may on behalf
of the holders of all such affected Securities waive any past
default or breach or Event of Default and its consequences,
except a default in the payment of the principal of or premium
or interest on any Security of any series or an Event of Default
in respect of a covenant or provision of the Indenture or of any
Security which cannot be modified or amended without the consent
of the holder of each Security affected.
Defeasance
The Indenture provides that, at our option, we will be
discharged from any and all obligations with respect to the
Securities of any series (except for certain obligations to
register the transfer or exchange of the Securities of that
series, to replace mutilated, destroyed, lost or stolen
Securities of that series, to maintain paying agencies, to
compensate and indemnify the Trustee and to maintain the trust
described below) (hereinafter called a defeasance)
upon the irrevocable deposit with the Trustee, in trust, of
money, and/or securities of the government
17
which issued the currency in which the Securities of that series
are payable or securities backed by the full faith and credit of
that government which, through the payment of the principal
thereof and the interest thereon in accordance with their terms,
will provide money, in an amount sufficient to pay all the
principal of and any premium and interest on the Securities of
that series on the stated maturity of those payments in
accordance with the terms of the Securities of that series. Such
a defeasance may be effected only if, among other things,
(a) we have delivered to the Trustee an opinion of counsel
(who may be our independent counsel) stating that we have
received from, or there has been published by, the Internal
Revenue Service a ruling or there has been a change in the
applicable laws or regulations, in either case to the effect
that the holders of the Securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of that 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
that defeasance had not occurred, and (b) we have delivered
to the Trustee an opinion of counsel in Canada (who may be our
independent counsel) or a ruling from the Canada Revenue Agency
to the effect that the holders of the Securities of that series
will not recognize income, gain or loss for Canadian federal or
provincial income or other Canadian tax purposes as a result of
that defeasance and will be subject to Canadian federal or
provincial income and other Canadian tax on the same amounts, in
the same manner and at the same times as would have been the
case if that defeasance had 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). In addition, we may obtain a discharge of the Indenture
with respect to the Securities of all series issued under the
Indenture by depositing with the Trustee, in trust, an amount of
money and government securities as shall be sufficient to pay,
at stated maturity or upon redemption, all of those Securities,
provided that those Securities are by their terms to become due
and payable within one year or are to be called for redemption
within one year.
The Indenture also provides that we may omit to comply with the
restrictive covenants described under the caption Negative
Pledge and certain other covenants and no Event of Default
shall arise with respect to the Securities of that series by
reason of this failure to comply (hereinafter called a
covenant defeasance), upon the irrevocable deposit
with the Trustee, in trust, of money and/or securities of the
government which issued the currency in which the Securities of
that series are payable or securities backed by the full faith
and credit of that government which, through the payment of the
principal thereof and the interest thereon in accordance with
their terms, will provide money, in an amount sufficient to pay
all the principal of and any premium and interest on the
Securities of that series on the stated maturity of those
payments in accordance with the terms of the Securities of that
series. Our other obligations with respect to the Securities of
that series would remain in full force and effect. A covenant
defeasance may be effected only if, among other things,
(a) we have delivered to the Trustee an opinion of counsel
(who may be our independent counsel) to the effect that the
holders of Securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a
result of the 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 that
covenant defeasance had not occurred, and (b) we have
delivered to the Trustee an opinion of counsel in Canada (who
may be our independent counsel) or a ruling from the Canada
Revenue Agency to the effect that the holders of the Securities
of that series will not recognize income, gain or loss for
Canadian federal or provincial income or other Canadian tax
purposes as a result of that defeasance and will be subject to
Canadian federal or provincial income and other Canadian tax on
the same amounts, in the same manner and at the same times as
would have been the case if that defeasance had 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).
In the event that we exercise our option to effect a covenant
defeasance with respect to the Securities of any series and the
Securities of that series are thereafter declared due and
payable because of the occurrence of another Event of Default,
the amount of money and securities on deposit with the Trustee
would be sufficient to pay the amounts due on the Securities of
that series at their respective stated maturities, but may not
be sufficient to pay the amounts due on the Securities of that
series at the time of the acceleration resulting from that Event
of Default. However, we would remain liable for this deficiency.
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Consent
to Service
We have designated CT Corporation System, 111 Eighth Avenue,
13th Floor, New York, New York, 10011 as its authorized agent
for service of process in the United States in any action, suit
or proceeding arising out of or relating to the Indenture or the
Securities and for actions brought under federal or state
securities law in any federal or state court located in New
York, New York and irrevocably submit to the non-exclusive
jurisdiction of any such court.
Governing
Law
The Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of
New York.
Enforceability
of Judgments
We are incorporated and governed by the laws of Canada. A
substantial portion of our assets are located outside the United
States and some or all of the directors and officers and some or
all of the experts named herein are residents of Canada. As a
result, it may be difficult for investors to effect service
within the United States upon us and upon those directors,
officers and experts, or to realize in the United States upon
judgments of courts of the United States predicated upon our
civil liability and the civil liability of our directors,
officers or experts. We have also been advised by Macleod Dixon
llp that there is
some doubt as to the enforceability in Canada by a court in
original actions, or in actions to enforce judgments of United
States courts, of liabilities predicated upon United States
federal securities laws.
PLAN OF
DISTRIBUTION
We may sell the debt securities to or through underwriters or
dealers. We may also sell the debt securities to one or more
other purchasers directly or through agents.
The applicable prospectus supplement will set forth the terms of
the offering, including the name or names of any underwriters or
agents, the purchase price or prices of the debt securities to
be offered, the proceeds to us from the sale of the debt
securities to be offered, any initial public offering price, any
underwriting discount or commission and any discounts,
concessions or commissions allowed or reallowed or paid by any
underwriter to other dealers. Any initial public offering price
and any discounts, concessions or commissions allowed or
reallowed or paid to dealers may be changed from time to time.
The debt securities may be sold from time to time in one or more
transactions at a fixed price or fixed prices, which may be
changed, or at market prices prevailing at the time of sale, at
prices related to these prevailing market prices or at
negotiated prices.
If so indicated in the applicable prospectus supplement, we may
authorize dealers or other persons acting as our agents to
solicit offers by certain institutions to purchase the debt
securities directly from us pursuant to contracts providing for
payment and delivery on a future date. These contracts will be
subject only to the conditions set forth in the applicable
prospectus supplement or supplements, which will also set forth
the commission payable for solicitation of these contracts.
Underwriters, dealers and agents who participate in the
distribution of the debt securities may be entitled under
agreements to be entered into with us to indemnification by us
against certain liabilities, including liabilities under the
U.S. Securities Act of 1933, as amended, or to contribution with
respect to payments which those underwriters, dealers or agents
may be required to make in respect thereof. Those underwriters,
dealers and agents may be customers of, engage in transactions
with or perform services for us in the ordinary course of
business.
Each series of the debt securities will be a new issue of
securities with no established trading market. Unless otherwise
specified in an applicable prospectus supplement relating to a
series of debt securities, the debt securities will not be
listed on any securities exchange or on any automated dealer
quotation system. Some broker-dealers may make a market in the
debt securities, but they will not be obligated to do so and may
discontinue any market-making activities at any time without
notice. No assurance can be given as to the liquidity of the
trading market for the debt
19
securities of any series or that an active public market for the
debt securities of any series will develop. If an active public
trading market for the debt securities of any series does not
develop, the market price and liquidity of such series of debt
securities may be adversely affected.
EARNINGS
COVERAGE
The following consolidated earnings coverage ratios of CPRL are
calculated for the twelve-month period ended December 31,
2008 based on audited financial information and for the
twelve-month period ended March 31, 2009 based on unaudited
financial information. The ratios have been calculated based on
information prepared in accordance with Canadian GAAP. The
interest coverage ratios set out below do not purport to be
indicative of interest coverage ratios for any future periods.
These coverage ratios do not give effect to the issuance of
securities that may be issued pursuant to this prospectus and
any prospectus supplement, since the aggregate principal amounts
and the terms of such securities are not presently known.
On May 15, 2009, we issued US$350 million of 7.250%
notes due May 15, 2019 (the 2019 Notes). The
proceeds of the offering of the 2019 Notes were used to
partially finance the repurchase, pursuant to a tender offer
which expired on June 10, 2009, of
(i) US$154 million of our 6.250% notes due 2011,
(ii) US$299 million of our 5.750% notes due 2013, and
(iii) US$22 million of our 6.500% notes due 2018. The
earnings coverage ratios below have been adjusted to reflect
this debt issuance and these debt repurchases.
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Twelve Months
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Twelve Months
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Ended
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Ended
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December 31,
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March 31,
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2008
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2009
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Earnings coverage on long-term debt
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Before foreign exchange on long-term
debt(1)(3)
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3.9x
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3.6x
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After foreign exchange on long-term
debt(2)(3)
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3.8x
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3.6x
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Notes:
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(1)
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Earnings coverage is equal to income (before foreign exchange on
long-term debt) before interest expense, plus the amount of
interest that has been capitalized during the period, and income
tax expense divided by interest expense on all debt.
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(2)
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Earnings coverage is equal to income (after foreign exchange on
long-term debt) before interest expense, plus the amount of
interest that has been capitalized during the period, and income
tax expense divided by interest expense on all debt.
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(3)
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The earnings coverage ratios have been calculated excluding
carrying charges for the $44.0 million and
$65.3 million in long-term debt maturing within one year
reflected as current liabilities in CPRLs consolidated
balance sheets as at December 31, 2008 and March 31,
2009, respectively. If such long-term debt maturing within one
year had been classified in its entirety as long-term debt for
purposes of calculating earnings coverage ratios, the entire
amount of the annual carrying charges for such long-term debt
maturing within one year would have been reflected in the
calculation of CPRLs earnings coverage ratios. For the
twelve-month period ended December 31, 2008, earnings
coverage on long-term debt before foreign exchange on long-term
debt and after foreign exchange on long-term debt would have
been 3.6x and 3.6x, respectively. For the twelve-month period
ended March 31, 2009, earnings coverage on long-term debt
before foreign exchange on long-term debt and after foreign
exchange on long-term debt would have been 3.4x and 3.4x ,
respectively.
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CPRLs interest expense requirements, including interest
capitalized during the period and as adjusted for the debt
issuance and debt repurchases discussed above, amounted to
approximately $285.5 million for the twelve-month period
ended December 31, 2008 and approximately
$292.4 million for the twelve-month period ended
March 31, 2009. CPRLs earnings before interest
expense and income tax expense for the twelve-month period ended
December 31, 2008, as adjusted for the debt issuance and
debt repurchases discussed above, was approximately
$1,024.6 million, which is 3.6 times CPRLs net
interest expense requirements for this period and for the
twelve-month period ended March 31, 2009 was approximately
$987.7 million, which is 3.4 times CPRLs interest
expense requirements for this period.
If we offer debt securities having a term to maturity in excess
of one year under this prospectus and a prospectus supplement,
the prospectus supplement will include earnings coverage ratios
giving effect to the issuance of such securities.
20
CERTAIN
INCOME TAX CONSIDERATIONS
The applicable prospectus supplement will describe the material
Canadian federal income tax consequences to investors of
purchasing, owning and disposing of debt securities, including,
in the case of an investor who is not a resident of Canada,
whether payments of principal, premium, if any, and interest
will be subject to Canadian non-resident withholding tax.
The applicable prospectus supplement will also describe certain
U.S. federal income tax consequences of the purchase, ownership
and disposition of the debt securities by an investor who is a
United States person, including, to the extent applicable,
certain relevant U.S. federal income tax rules pertaining to
capital gains and ordinary income treatment, original issue
discount, backup withholding and the foreign tax credit, and any
consequences relating to debt securities payable in a currency
other than U.S. dollars, issued at an original discount for U.S.
federal income tax purposes or containing early redemption
provisions or other special terms.
RISK
FACTORS
In addition to the risk factors set forth below, additional risk
factors relating to our business are discussed in the AIF and
MD&A, which risk factors are incorporated herein by
reference. Prospective purchasers of the debt securities should
consider carefully the risk factors set forth below and those
incorporated by reference as well as the other information
contained in and incorporated by reference in this prospectus
and contained in the applicable prospectus supplement before
purchasing the debt securities offered hereby.
If any event arising from these risks occurs, our or CPRLs
business, prospects, financial condition, results of operations
or cash flows, or your investment in the debt securities could
be materially adversely affected.
There can
be no assurance as to the liquidity of the trading market for
the debt securities or that a trading market for the debt
securities will develop.
There is no public market for the debt securities and, unless
otherwise specified in the applicable prospectus supplement, we
do not intend to apply for listing of the debt securities on any
securities exchanges. If the debt securities are traded after
their initial issue, they may trade at a discount from their
initial offering prices depending on prevailing interest rates,
the market for similar securities and other factors, including
general economic conditions and our financial condition. There
can be no assurance as to the liquidity of the trading market
for the debt securities or that a trading market for the debt
securities will develop.
Credit
ratings may not reflect all risks of an investment in the debt
securities and may change.
Credit ratings may not reflect all risks associated with an
investment in the debt securities. Any credit ratings applied to
the debt securities are an assessment of our ability to pay our
obligations. Consequently, real or anticipated changes in the
credit ratings will generally affect the market value of the
debt securities. The credit ratings, however, may not reflect
the potential impact of risks related to structure, market or
other factors discussed herein on the value of the debt
securities. There is no assurance that any credit rating
assigned to the debt securities will remain in effect for any
given period of time or that any rating will not be lowered or
withdrawn entirely by the relevant rating agency.
Changes
in interest rates may cause the value of the debt securities to
decline.
Prevailing interest rates will affect the market price or value
of the debt securities. The market price or value of the debt
securities may decline as prevailing interest rates for
comparable debt instruments rise, and increase as prevailing
interest rates for comparable debt instruments decline.
The debt
securities will be effectively subordinated to certain
indebtedness of our corporate and partnership
subsidiaries.
The debt securities will be our unsubordinated and unsecured
obligation and, unless otherwise provided with respect to a
series of debt securities, will rank equally with all of our
other unsecured, unsubordinated obligations.
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We conduct a substantial portion of our business through
corporate and partnership subsidiaries. Our obligations under
the debt securities will be structurally subordinate to all
existing and future indebtedness and liabilities, including
trade payables, of any of our corporate and partnership
subsidiaries.
LEGAL
MATTERS
Unless otherwise specified in the applicable prospectus
supplement relating to a series of debt securities, certain
legal matters will be passed upon for us by Macleod Dixon
llp, Calgary,
Alberta, and by Paul, Weiss, Rifkind, Wharton &
Garrison llp, New
York, New York. In addition, certain legal matters relating to
United States law will be passed upon for the underwriters,
dealers or agents by Shearman & Sterling
llp, Toronto,
Ontario.
EXPERTS
The consolidated financial statements of CPRL incorporated in
this prospectus by reference have been so incorporated by
reference in reliance on the audit report of
PricewaterhouseCoopers LLP, chartered accountants, given on the
authority of the said firm as experts in auditing and accounting.
DOCUMENTS
FILED AS PART OF THE U.S. REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of
the registration statement of which this prospectus is a part
insofar as required by the SECs
Form F-9:
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the documents listed in the first paragraph under
Documents Incorporated by Reference in this
prospectus;
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the consents of accountants and counsel;
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powers of attorney;
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the form of trust indenture relating to the Offered Securities;
and
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the statement of eligibility of the trustee on
Form T-1.
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22
CONSENT
OF AUDITORS
We have read the short form base shelf prospectus of Canadian
Pacific Railway Company (the Company) dated
June 26, 2009 relating to the issue and sale of debt
securities in an aggregate principal amount of up to
US$1,500,000,000 or its equivalency in any other currency (the
prospectus). We have complied with Canadian
generally accepted standards for an auditors involvement
with offering documents.
We consent to the incorporation by reference in the
above-mentioned prospectus of our report to the shareholders of
Canadian Pacific Railway Limited (CPRL) dated
February 23, 2009 on the consolidated balance sheets of
CPRL as at December 31, 2008 and 2007 and the consolidated
statements of income, comprehensive income, changes in
shareholders equity and cash flows for each of the years
in the three-year period ended December 31, 2008 and the
effectiveness of internal control over financial reporting as of
December 31, 2008.
(Signed) PricewaterhouseCoopers LLP
Chartered Accountants
Calgary, Alberta
June 26, 2009
23
CANADIAN PACIFIC RAILWAY
COMPANY
% Notes
due
PROSPECTUS SUPPLEMENT
Joint
Book-Running Managers