WHEREAS, the Company, the guarantors party hereto and the Trustee have entered into the Eleventh Supplemental Indenture, dated as of April 22, 2020 (the “2050 Notes Indenture” and, collectively with the 2043 Notes Indenture, the 2045 Notes Indenture, the 2026 Notes Indenture, the 2048 Notes Indenture, the 2029 Notes Indenture and the 2069 Notes Indenture, the “Supplemental Indentures”), which established and provided for the issuance of the 3.500% Senior Notes due 2050 (the “2050 Notes” and, collectively with the 2043 Notes, the 2045 Notes, the 2026 Notes, the 2048 Notes, the 2029 Notes and the 2069 Notes, the “Notes”);
WHEREAS, Section 11.02 of the Indenture provides, among other things, that the Company and the Trustee may, subject to certain exceptions noted therein, amend or supplement the Base Indenture and the Securities of any series with the written consent of the Holders of a majority in aggregate principal amount of Securities of such series then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Securities of any applicable series) (in respect of each series of Securities, the “Requisite Consent”);
WHEREAS, Canadian Pacific Railway Company (“CPRC”), a corporation incorporated under the Canada Business Corporations Act and having its head office in the City of Calgary, in the Province of Alberta, has offered to exchange (the “Exchange Offers”) any and all of each series of the outstanding Notes for corresponding series of notes to be issued by CPRC, which will be guaranteed by Canadian Pacific Kansas City Limited (f/k/a Canadian Pacific Railway Limited), (“CPKC”), a corporation incorporated under the Canada Business Corporations Act and having its head office in the City of Calgary, in the Province of Alberta, upon the terms and subject to the conditions set forth in the prospectus, dated as of April 5, 2023 (the “Prospectus”), forming a part of the Registration Statement on Form F-4, filed by CPKC and CPRL with the Securities and Exchange Commission on March 20, 2023, and which was declared effective on April 5, 2023;
WHEREAS, in connection with the Exchange Offers, CPRC has also solicited consents from the holders of the Notes to certain amendments (the “Amendments”) to the Base Indenture and the Supplemental Indentures, as described in the Prospectus and set forth in Articles II and III of this Thirteenth Supplemental Indenture, with the operation of such Amendments being subject to the satisfaction or waiver, where permissible, by CPRC of the conditions to the Exchange Offers and the acceptance by CPRC for exchange of the Notes validly tendered and not withdrawn pursuant to the Exchange Offers;
WHEREAS, with respect to each series of the Notes, CPRC has received and caused to be delivered to the Trustee evidence of the Requisite Consent to effect the Amendments;
WHEREAS, the Company is undertaking to execute and deliver this Thirteenth Supplemental Indenture to delete or amend, as applicable, certain provisions and covenants in the Indenture and the Supplemental Indentures with respect to the Notes, in connection with the Exchange Offers and the related consent solicitations; and
WHEREAS, all acts and things necessary to make this Thirteenth Supplemental Indenture, when duly executed and delivered, a valid and binding instrument in accordance with its terms and for the purposes herein expressed, have been done and performed; and the execution and delivery of this Thirteenth Supplemental Indenture have been in all respects duly authorized.
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