EXHIBIT 7.1
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ABITIBI-CONSOLIDATED INC.,
ABITIBI-CONSOLIDATED COMPANY OF CANADA,
AND
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
TRUSTEE
INDENTURE
DATED AS OF JUNE 15, 2004
DEBT SECURITIES
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF JUNE ___, 2004
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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ss.310 (a)(1) ................................... 6.9
ss. (a)(2) ................................... 6.9
ss. (b) ................................... 6.10
ss.312 (c) ................................... 7.1
ss.314 (a) ................................... 7.3
(a)(4) ................................... 10.4
(c)(1) ................................... 1.2
(c)(2) ................................... 1.2
(e) ................................... 1.2
ss.315 (b) ................................... 6.2
ss.316 (a) (last sentence) ...................................
1.1("Outstanding) ...................................
(a)(1)(A) ................................... 5.2, 5.12
(a)(1)(B) ................................... 5.13
(b) ................................... 5.8
(c) ................................... 1.4(a)
ss.317 (a)(1) ................................... 5.3
(a)(2) ................................... 5.4
(b) ................................... 10.3
ss.318 (a) ................................... 1.12
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION..............................................................................2
Section 1.1 Definitions..............................................................................2
Section 1.2 Compliance Certificates and Opinions....................................................14
Section 1.3 Form of Documents Delivered to Trustee..................................................15
Section 1.4 Acts of Holders.........................................................................16
Section 1.5 Notices, Etc., to Trustee, the Company or the Guarantor.................................17
Section 1.6 Notice to Holders; Waiver...............................................................17
Section 1.7 Conflict with Trust Indenture Legislation...............................................18
Section 1.8 Effect of Headings and Table of Contents................................................18
Section 1.9 Successors and Assigns..................................................................18
Section 1.10 Separability Clause.....................................................................18
Section 1.11 Benefits of Indenture...................................................................18
Section 1.12 Governing Law...........................................................................19
Section 1.13 Non-Business Day........................................................................19
Section 1.14 Immunity of Incorporators, Stockholders, Officers and Directors.........................19
Section 1.15 Certain Matters Relating to Currencies..................................................19
Section 1.16 Language of Notices, Etc................................................................20
Section 1.17 Appointment of Agent for Service; Submission to Jurisdiction............................20
ARTICLE II SECURITY FORMS .................................................................................21
Section 2.1 Forms Generally.........................................................................21
Section 2.2 Form of Trustee's Certificate of Authentication.........................................23
Section 2.3 Securities in Global Form...............................................................24
Section 2.4 Form of Guarantee.......................................................................24
Section 2.5 Form of Legend for Securities...........................................................26
ARTICLE III THE SECURITIES .................................................................................28
Section 3.1 Title, Payment and Terms................................................................28
Section 3.2 Denominations...........................................................................32
Section 3.3 Execution, Authentication, Delivery and Dating..........................................32
Section 3.4 Temporary Securities....................................................................33
Section 3.5 Registration, Registration of Transfer and Exchange; Certain Transfers and Exchanges....34
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities........................................42
Section 3.7 Payment of Interest; Interest Rights Preserved..........................................42
Section 3.8 Optional Reset of Interest Date and Extension of Stated Maturity........................44
Section 3.9 Persons Deemed Owners...................................................................45
Section 3.10 Cancellation............................................................................46
Section 3.11 Computation of Interest.................................................................46
Section 3.12 Currency and Manner of Payments in Respect of Securities................................47
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Section 3.13 Appointment and Resignation of Successor Currency Determination Agent...................50
Section 3.14 CUSIP Numbers...........................................................................51
ARTICLE IV SATISFACTION AND DISCHARGE......................................................................51
Section 4.1 Satisfaction and Discharge of Securities of any Series.................................51
Section 4.2 Application of Trust Money.............................................................52
ARTICLE V REMEDIES .......................................................................................53
Section 5.1 Events of Default......................................................................53
Section 5.2 Acceleration of Maturity; Rescission and Annulment.....................................54
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee........................55
Section 5.4 Trustee May File Proofs of Claim.......................................................56
Section 5.5 Trustee May Enforce Claims Without Possession of Securities............................57
Section 5.6 Application of Money Collected.........................................................57
Section 5.7 Limitation on Suits....................................................................58
Section 5.8 Unconditional Right of Holders to Receive Principal (and Premium, if any) and
Interest, if any.......................................................................58
Section 5.9 Restoration of Rights and Remedies.....................................................58
Section 5.10 Rights and Remedies Cumulative.........................................................59
Section 5.11 Delay or Omission Not Waiver...........................................................59
Section 5.12 Control by Holders.....................................................................59
Section 5.13 Waiver of Past Defaults................................................................59
Section 5.14 Undertaking for Costs..................................................................60
Section 5.15 Waiver of Stay or Extension Laws.......................................................60
Section 5.16 Judgment Currency......................................................................60
ARTICLE VI THE TRUSTEE ...................................................................................61
Section 6.1 Certain Duties and Responsibilities....................................................61
Section 6.2 Notice of Defaults.....................................................................62
Section 6.3 Certain Rights of Trustee..............................................................63
Section 6.4 Not Responsible for Recitals or Issuance of Securities.................................63
Section 6.5 May Hold Securities....................................................................64
Section 6.6 Money Held in Trust....................................................................64
Section 6.7 Compensation and Reimbursement.........................................................64
Section 6.8 Disqualification; Conflicting Interests................................................65
Section 6.9 Corporate Trustee Required; Different Trustees for Different Series; Eligibility.......65
Section 6.10 Resignation and Removal; Appointment of Successor......................................66
Section 6.11 Acceptance of Appointment by Successor.................................................67
Section 6.12 Merger, Conversion, Consolidation or Succession to Business............................68
Section 6.13 Authenticating Agents..................................................................68
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS.............................................70
Section 7.1 Trustee to Furnish Names and Addresses of Holders......................................70
Section 7.2 Communications to Holders..............................................................70
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Section 7.3 Reports by the Guarantor and the Company, if applicable................................71
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................................72
Section 8.1 Company and Guarantor May Consolidate, Etc., Only on Certain Terms.....................72
Section 8.2 Successor Corporation Substituted......................................................72
Section 8.3 Securities to Be Secured in Certain Events.............................................73
ARTICLE IX SUPPLEMENTAL INDENTURES........................................................................73
Section 9.1 Supplemental Indentures Without Consent of Holders....................................73
Section 9.2 Supplemental Indentures With Consent of Holders.......................................75
Section 9.3 Execution of Supplemental Indentures..................................................76
Section 9.4 Effect of Supplemental Indentures.....................................................76
Section 9.5 Conformity With Trust Indenture Legislation...........................................77
Section 9.6 Reference in Securities to Supplemental Indentures....................................77
Section 9.7 Notice of Supplemental Indentures.....................................................77
ARTICLE X COVENANTS ......................................................................................77
Section 10.1 Payment of Principal (and Premium, if any) and Interest, if any.......................77
Section 10.2 Maintenance of Office or Agency.......................................................77
Section 10.3 Money for Securities Payments to Be Held in Trust.....................................78
Section 10.4 Statements as to Compliance...........................................................79
Section 10.5 Existence.............................................................................80
Section 10.6 Limitation on Liens...................................................................80
Section 10.7 Limitation on Sale and Leaseback Transactions.........................................80
Section 10.8 Waiver of Certain Covenants...........................................................81
Section 10.9 Payment of Additional Amounts.........................................................81
ARTICLE XI REDEMPTION OF SECURITIES.........................................................................83
Section 11.1 Applicability of This Article.........................................................83
Section 11.2 Election to Redeem; Notice to Trustee.................................................83
Section 11.3 Selection of Securities to be Redeemed................................................84
Section 11.4 Notice of Redemption..................................................................84
Section 11.5 Deposit of Redemption Price...........................................................85
Section 11.6 Securities Payable on Redemption Date.................................................85
Section 11.7 Securities Redeemed in Part...........................................................86
Section 11.8 Tax Redemption; Special Tax Redemption................................................86
ARTICLE XII SINKING FUNDS .................................................................................87
Section 12.1 Applicability of This Article.........................................................87
Section 12.2 Satisfaction of Sinking Fund Payments With Securities.................................87
Section 12.3 Redemption of Securities for Sinking Fund.............................................87
ARTICLE XIII REPAYMENT AT OPTION OF HOLDERS.................................................................88
Section 13.1 Applicability of Article..............................................................88
Section 13.2 Election to Repay; Notice to the Company..............................................88
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Section 13.3 Deposit of Repayment Price............................................................89
Section 13.4 Securities Payable on Repayment Date..................................................89
Section 13.5 Securities Repaid in Part.............................................................90
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE.............................................................90
Section 14.1 Option to Effect Defeasance or Covenant Defeasance....................................90
Section 14.2 Defeasance and Discharge..............................................................90
Section 14.3 Covenant Defeasance...................................................................91
Section 14.4 Conditions to Defeasance or Covenant Defeasance.......................................91
Section 14.5 Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions..............................................................93
Section 14.6 Reinstatement.........................................................................94
ARTICLE XV GUARANTEE OF SECURITIES..........................................................................95
Section 15.1 Guarantee.............................................................................95
Section 15.2 Execution and Delivery of Guarantees..................................................96
Section 15.3 This Article not to Prevent Events of Default.........................................96
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Annex A-1 - Form of Transfer Certificate - Restricted Global Security to
Temporary Regulation S Global Security
Annex A-2 - Form of Transfer Certificate - Restricted Global Security to
Regulation S Global Security
Annex B - Form of Transfer Certificate - Temporary Regulation S Global
Security or Regulation S Global Security to Restricted Global
Security
Annex C-1 - Form of Certification to be Given by Holders of Beneficial
Interest in a Temporary Regulation S Global Security to
Euroclear or Clearstream
Annex C-2 - Form of Certification to be Given by Euroclear Bank S.A/N.V.,
as operator of the Euroclear System, or Clearstream Banking
Annex C-3 - Form of Certification to be Given by Transferee of Beneficial
Interest in a Temporary Regulation S Global Security After
the Restricted Period
Annex D-1 - Form of Transfer Certificate - Non-Global Restricted Security
to Restricted Global Security
Annex D-2 - Form of Certificate - Non-Global Restricted Security to
Regulation S Global Security or Temporary Regulation S
Global Security
PARTIES
This is an INDENTURE dated as of June 15, 2004 among
ABITIBI-CONSOLIDATED INC., a corporation duly organized and existing under the
laws of Canada and having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, in the City of Montreal, Province ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called the "Parent"), ABITIBI-CONSOLIDATED COMPANY OF CANADA, a
corporation duly organized and existing under the laws of the Province of
Quebec, Canada and having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, in the City of Montreal, Province ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called the "Company"), and THE BANK OF NOVA SCOTIA TRUST COMPANY OF
NEW YORK, a corporation organized and existing under the laws of New York and
having a Corporate Trust Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ as Trustee (hereinafter called the "Trustee").
RECITALS
The Company deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Securities") evidencing
its unsecured indebtedness, and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities in one or more series, unlimited as to principal amount, to have such
titles, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided.
The Parent deems it necessary to guarantee the Securities (the
"Guarantees") and, to provide therefore, it has duly authorized the execution
and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of each of the Company and the Parent, in accordance with its terms, have been
done, and each of the Company and the Parent propose to do all things necessary
to make the Securities and the Guarantees, when executed by the Company or the
Parent, as the case may be, and, in the case of the Securities, authenticated
and delivered by the Trustee hereunder and duly issued by the Company, the valid
obligations of the Company and the Parent, as the case may be, and to make this
Indenture a valid agreement of the Company and the Parent, each in accordance
with its respective terms.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal, ratable and proportionate benefit of all Holders of the Securities or
series thereof, as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. For all purposes of this Indenture
and all Securities issued hereunder, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in Canada, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in Canada at the date as of
which this instrument was executed;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) certain terms, used principally in Article III and Article
VI, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable for a term of more than 12 months, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under
3
such lease during the remaining term thereof (excluding any subsequent renewal
or other extension option held by the lessee), discounted from the respective
due dates to the date of determination at a rate equivalent to the rate used for
the purposes of financial reporting in accordance with Canadian generally
accepted accounting principles. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of rent payable
by the lessee with respect to such period after excluding amounts required to be
paid on account of insurance, taxes, assessments, utility, operating and labor
costs and similar charges.
"Authenticating Agent" means any individual authorized to
authenticate and deliver Securities in the name of the Trustee pursuant to
Section 6.13.
"bankruptcy law" means, when used with respect to the Company
or the Guarantor, any United States federal or state or Canadian federal or
provincial bankruptcy, insolvency, reorganization or other similar law.
"Board of Directors" means either the board of directors of
the Parent or the Company, as applicable, or any duly authorized committee of
such board or any director or directors and/or officer or officers of the Parent
or the Company, as applicable, to whom such board or committee shall have duly
delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified
by the Secretary or a Deputy or Assistant Secretary of the Parent or the
Company, as applicable, to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors and/or officer or officers to
whom the Board of Directors shall have duly delegated its authority, and
delivered to the Trustee.
"Business Day", when used with respect to any particular Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law to close, and shall otherwise mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions,
at the place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Certificate of a Firm of Independent Chartered Accountants"
means a certificate signed by any firm of independent chartered accountants of
recognized standing selected by the Company or the Guarantor, as applicable. The
term "independent" when used with respect to any specified firm of chartered
accountants means such a firm which (1) is in fact independent, (2) does not
have any direct financial interest or any material indirect financial interest
in the Company or the Guarantor or in any other obligor upon the Securities of
any series or in any Affiliate of the Company or the Guarantor or of such other
obligor, and (3) is not connected with the Company or the Guarantor or such
other obligor or any Affiliate of the Company or the Guarantor or of such other
obligor, as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions, but such firm may be the
regular auditors employed by the Company or the Guarantor. Whenever it is herein
provided that any Certificate of a Firm of Independent Chartered Accountants
shall be furnished to the Trustee,
4
such Certificate shall state that the signer has read this definition and that
the signer is independent within the meaning hereof.
"Clearstream" means Clearstream Banking, societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Commodity Price Protection Agreement" means, in respect of
any Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter the
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" means, respectively, a
written request or order signed in the name of the Company or the Guarantor, as
applicable, (1) by any two of its Chairman of the Board, its President, its
Secretary, or a Vice President of the Company (including any Vice President,
whether or not designated by a number or a word or words added before or after
the title "Vice President") or a Senior Vice President of the Guarantor, (2) by
any one of the foregoing officers and any one of its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, or an Assistant or Deputy
Secretary or (3) by any two Persons designated in a Company Order previously
delivered to the Trustee by any two of the foregoing officers, and delivered to
the Trustee.
"Component Currency" has the meaning specified in Section
3.12(h).
"Consolidated Net Tangible Assets" means the total amount of
assets of any Person on a consolidated basis, including deferred pension costs,
after deducting therefrom (i) all current liabilities (excluding any
indebtedness classified as a current liability), (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and financing costs and all
similar intangible assets and (iii) appropriate adjustments on account of
minority interests of other Persons holding shares of the Subsidiaries of such
Person, all as set forth in the most recent balance sheet of such Person and its
consolidated Subsidiaries (but, in any event, as of a date within 150 days of
the date of determination) and computed in accordance with Canadian generally
accepted accounting principles.
"Conversion Date" has the meaning specified in Section
3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and by
a central bank or other public
5
institution of or within the international banking community for the settlement
of transactions, or (ii) any currency unit (or composite currency) for the
purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office of The Bank of Nova Scotia Trust Company of New York,
at the date of the execution of this Indenture, is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" includes corporations, associations, companies
and business trusts.
"Currency Exchange Protection Agreement" means, in respect of
any Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to such Person against
fluctuations in currency exchange rates.
"Currency Determination Agent", with respect to Securities of
any series, means a New York Clearing House bank designated pursuant to Section
3.1 or Section 3.13 or the Canadian Imperial Bank of Commerce at its central
foreign exchange desk in its main office in Toronto.
"Default" means any event which is, or after notice or passage
of time or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
3.7(d).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.12(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.12(f).
"Dollars" and the sign "$" mean the currency of the United
States of America as at the time of payment which is legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company, its nominees and
their respective successors.
"Election Date" has the meaning specified in Section 3.12(h).
"Euroclear" means Euroclear S.A./N.V., or its successor, as
operator of the Euroclear System.
6
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act
of 1934 and any statute successor thereto, in each case as amended from time to
time.
"Exchange Rate Officers' Certificate" means a certificate or
facsimile thereof setting forth (i) the applicable Market Exchange Rate and (ii)
the Dollar, Foreign Currency or currency unit amounts of principal (and premium,
if any) and interest, if any (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount determined in
accordance with Section 3.2 in the relevant currency or currency unit), payable
with respect to a Security of any series on the basis of such Market Exchange
Rate, signed by the Treasurer, the Controller, any Vice President, any Assistant
Treasurer or any Assistant Controller of the Company.
"Foreign Currency" means a currency issued and actively
maintained as a country's or countries' recognized unit of domestic exchange by
the government of any country other than the United States.
"Global Security" means one or more Securities evidencing all
or part of the Securities of any series, registered in the name of the
Depositary, bearing the legends set forth in Section 2.5 or such legends as
maybe specified or contemplated by Section 3.1 for such Securities.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 3.1, securities
which are (i) direct obligations of the government which issued the currency in
which the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such currency and are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Guarantee" means, with respect to any particular series of
Securities, any guarantee of the Parent as endorsed on a Security of the Company
authenticated and delivered pursuant to this Indenture and shall include the
Guarantee set forth in Section 15.1 of this Indenture.
7
"Guarantor" means the Parent until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Guarantor" shall mean such successor corporation.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Protection Agreement, Currency
Exchange Protection Agreement or Commodity Price Protection Agreement.
"Holder", when used with respect to any Security, means the
Person in whose name the Security is registered in the Security Register.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
a particular series of Securities established as contemplated by Section 3.1,
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 3.1, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate, if any, prescribed in such Original
Issue Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Interest Rate Protection Agreement" means, in respect of any
Person, any interest rate swap agreement, interest rate option agreement,
interest rate cap agreement, interest rate collar agreement, interest rate floor
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates.
"Lien" means, with respect to any properties or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, encumbrance, preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such properties or assets (including, without
8
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Market Exchange Rate" means (i) for any conversion involving
a currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 3.1 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either Montreal, New York City, London or
any other principal market for Dollars or such purchased Foreign Currency, in
each case determined by the Currency Determination Agent. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in Montreal, New York City, London, or other
principal market for such currency or currency unit in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such
currency or currency unit shall be that upon which a non-resident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities. For purposes of this definition, a "non-resident issuer" shall mean
an issuer that is not a resident of the country or countries that issue such
currency or whose currencies are included in such currency unit.
"Maturity", when used with respect to any Security, means the
date on which the principal of that Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed (1) by any
two of the Chairman of the Board, the President, the Secretary, a Vice President
of the Company or a Senior Vice President of the Guarantor, or (2) by any one of
the foregoing officers and any one of the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, or an Assistant or Deputy Secretary of the
Company or the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means, for purposes of Sections
4.1(a)(3), 11.8 and 14.4, a written opinion of independent legal counsel of
recognized standing and, for all other purposes hereof, means a written opinion
of counsel, who may be an employee of or counsel to an the Company or the
Guarantor or may be other counsel satisfactory to the Trustee.
9
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities or portions thereof for whose payment or
redemption money in the necessary amount and in the required currency
or currency unit has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor or any other
obligor upon the Securities) in trust or set aside and segregated in
trust by the Company or the Guarantor or any other obligor upon the
Securities (if the Company or the Guarantor or any other obligor upon
the Securities shall act as its own Paying Agent) for the Holders of
such Securities; provided, however, that, if such Securities or
portions thereof are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture, or provision therefor
satisfactory to the Trustee has been made;
(3) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented
proof satisfactory to the Trustee that any such Securities are held by
bona fide holders in due course; and
(4) Securities, except to the extent in Sections 14.2
and 14.3, with respect to which the Company or the Guarantor, as the
case may be, has effected defeasance and/or covenant defeasance as
provided in Article XIV;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Owner Securities Certification" has the meaning specified in
Section 2.1(b)(i).
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"Parent" means the Person named as the "Parent" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Parent" shall mean such successor corporation.
"Paying Agent" means the Trustee or any other Person
authorized and appointed by the Company to pay the principal of (and premium, if
any) or interest, if any, on any Securities on behalf of the Company.
"Permitted Liens" of any Person at any particular time means:
(i) Liens existing on the date of this Indenture (or
those arising from pre-existing contractual commitments);
(ii) Liens incidental to the conduct of the business of
such Person or any Subsidiary of such Person or the ownership of their
property or assets, that do not materially impair the usefulness or
marketability of such property or assets;
(iii) any Lien (except on fixed assets and on shares of a
Subsidiary of such Person) to secure any indebtedness issued, assumed
or guaranteed by such Person or any Subsidiary of such Person which is
payable upon demand or which matures by its terms less than 12 months
from the date of issuance, assumption or guarantee;
(iv) any Lien in favour of a governmental entity in
connection with the operations of such Person or any Subsidiary of such
Person and not in respect of the financing thereof;
(v) Liens in favour of such Person or a Wholly-Owned
Subsidiary of such Person (but only so long as it is a Wholly-Owned
Subsidiary of such Person);
(vi) Liens securing the Securities;
(vii) Purchase Money Mortgages;
(viii) Liens on property or assets existing at the time of
acquisition thereof by such Person, provided, however, that such Liens
were not incurred in anticipation of such acquisition;
(ix) Liens on property or assets of a corporation existing
at the time such corporation becomes a Subsidiary of such Person, or is
liquidated or merged into, or amalgamated or consolidated with, such
Person or Subsidiary of such Person or at the time of the sale, lease
or other disposition to such Person or Subsidiary of such Person of all
or substantially all of the properties and assets of a corporation;
(x) Liens granted under any program for the securitization
of accounts receivable of such Person;
(xi) any Lien arising out of judgments or awards with
respect to which the Guarantor, the Company or any other Subsidiary of
the Guarantor shall be
11
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;
(xii) Liens granted in the ordinary course of business in
connection with Hedging Obligations; and
(xiii) any renewal, refunding or extension of any Lien
referred to in the foregoing clauses (i) through (xii) provided,
however, that the principal amount of indebtedness secured thereby
after such renewal, refunding or extension is not increased and the
Lien is limited to the property or assets originally subject thereto
and any improvements thereon.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by that particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, lost, destroyed or stolen Security.
"Purchase Money Mortgage" of any Person means any Lien created
upon any property or assets of the Person to secure or securing the whole or any
part of the purchase price of such property or assets or the whole or any part
of the cost of constructing or installing fixed improvements thereon or to
secure or securing the repayment of money borrowed to pay the whole or any part
of such purchase price or cost of any vendor's privilege or Lien on such
property or assets securing all or any part of such purchase price or cost
including title retention agreements and leases in the nature of title retention
agreements.
"Redemption Date", when used with respect to any Security to
be redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed pursuant to Section 11.8 of this Indenture (unless otherwise
specified pursuant to Section 3.1), means an amount, in the currency or currency
unit in which such Security is denominated or which is otherwise provided for
pursuant hereto, equal to the principal amount thereof (and premium, if any,
thereon) together with accrued and unpaid interest, if any, to the Redemption
Date, and when used with respect to any Security to be redeemed other than
pursuant to Section 11.8 of this Indenture, means the price at which it is to be
redeemed as specified pursuant to Section 3.1 of this Indenture.
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"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series, means the date, if any, specified
for that purpose as contemplated by Section 3.1.
"Regulation S" means Regulation S under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Regulation S Global Security" has the meaning specified in
Section 2.1.
"Regulation S Legend" means a legend substantially in the form
set forth in Section 2.5 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities offered and
sold pursuant to Regulation S. Such term includes the Regulation S Global
Security.
"Repayment Date", when used with respect to any Security to be
repaid in whole or in part, means the date fixed for such repayment pursuant to
this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid, means an amount, in the currency or currency unit in which such
Security is denominated or which is otherwise provided for pursuant hereto,
equal to the principal amount thereof (and premium, if any, thereon) together
with accrued interest, if any, to the Repayment Date.
"Responsible Officer", when used with respect to the Trustee,
means any trust officer or assistant trust officer, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Global Security" has the meaning specified in
Section 2.1.
"Restricted Period" for a series means the period of 40
consecutive days beginning on and including the later of (i) the day on which
Securities of that series are first offered to persons other than distributors
(as defined in Regulation S) in reliance on Regulation S and (ii) the original
issuance date of the Securities of that series.
"Restricted Securities" means all Securities offered and sold
pursuant to Rule 144A in a transaction that is not registered under the
Securities Act. Such term includes the Restricted Global Security and any
Securities issued in certificated form.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms set forth in Section 2.5 to be placed upon
each Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities of a series
purchased upon their original issuance by the initial purchasers from the
Company for resale pursuant to Rule 144A.
13
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"Sale and Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person more than
12 months after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset. The stated maturity of such arrangement
shall be the date of the last payment of rent or any other amount due under such
arrangement prior to the first date on which such arrangement may be terminated
by the lessee without payment of a penalty.
"Securities" means securities evidencing unsecured
indebtedness of the Company authenticated and delivered under this Indenture,
provided, however, that if at any time there is more than one Person acting as
Trustee under this Indenture, "Securities" with respect to this Indenture as to
which such Person is Trustee shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Securities Act" means the United States Securities Act of
1933 and any statute successor thereto, in each case as amended from time to
time.
"Securities Act Legend" means a Restricted Securities Legend
or a Regulation S Legend.
"Securities Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
A "series" of Securities means all Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the Trustee
pursuant to Section 3.7.
"Specified Amount" has the meaning specified in Section
3.12(h).
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation more than 50%
of the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries or
such Person or by such Person and one or more Subsidiaries thereof.
14
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Temporary Regulation S Global Securities" has the meaning
specified in Section 2.1(b)(i).
"Transferee Securities Certification" has the meaning
specified in Section 3.5.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns as Trustee hereunder. If
there shall be at one time more than one Trustee hereunder, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with respect to
those series of Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" or "TIA" means the United States Trust
Indenture Act of 1939, as amended, as in force at the date as of which this
instrument was executed, except as provided in Section 9.5.
"Trust Indenture Legislation" means, at any time, the
provisions of the TIA and regulations thereunder, in each case relating to trust
indentures and to the rights, duties and obligations of trustees under trust
indentures and of corporations issuing debt obligations under trust indentures
to the extent that such provisions are at such time in force and applicable to
this Indenture.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Voting Stock" of any Person means capital stock or other
ownership interests of such Person which ordinarily has voting power for the
election of directors (or Persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding capital stock or other ownership interests of
which (other than directors' qualifying shares) is at the time owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person or by such
Person and one or more Wholly-Owned Subsidiaries of such Person.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
15
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS
(a) Upon any application or request by the Company or the Guarantor to
the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
(b) Every certificate (other than statements provided pursuant to
Section 10.4) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
(a) Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his certificate
or opinion is based are erroneous.
(b) Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the Guarantor
stating that the information with respect to such factual matters is in the
possession of the Company or the Guarantor, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
16
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to either the Company or the
Guarantor or to both. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favour of the Trustee, the Company
and the Guarantor and any agent of the Trustee, the Company or the Guarantor, if
made in the manner provided in this Section.
(b) If the Company or the Guarantor shall solicit from Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company or the
Guarantor, as the case may be, shall have no obligation to do so. Such record
date shall be the record date specified in or pursuant to such Board Resolution
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided, however, that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than eleven months after the record date.
(c) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of this authority.
17
(d) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(e) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(f) Intentionally deleted.
(g) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal amount
of an Original Issue Discount Security or of an Indexed Security that may be
counted in making such determination and that shall be deemed to be Outstanding
for such purposes shall be equal to the amount of the principal thereof that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2 at the time the taking of such action by the
Holders of such requisite principal amount is evidenced to the Trustee.
(h) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind, subject however
to the other terms of this Indenture, every future Holder of the same Security
and the Holder of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, the Security Registrar, any
Paying Agent, the Company or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE, THE COMPANY
OR THE GUARANTOR
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust - Trustee Administration, or
(2) the Company or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (except as provided in
Section 5.1(4)) if in writing and mailed, first class postage prepaid, to the
Company or the Guarantor, as the case may be, addressed to it at the address of
its principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the Company
or the Guarantor.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER
(a) Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the
18
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
(b) In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed in the manner prescribed by this Indenture
shall be deemed to have been given whether or not received by any particular
Holder. In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
(c) Intentionally deleted.
(d) Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.7 CONFLICT WITH TRUST INDENTURE LEGISLATION
The Company, the Guarantor and the Trustee agree to comply
with the provisions of the Trust Indenture Legislation, to the extent
applicable, in connection with this Indenture and any action to be taken
hereunder. If any provision hereof limits, qualifies or conflicts with any
mandatory requirement of the Trust Indenture Legislation, such mandatory
requirement shall prevail.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company
and the Guarantor shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE
In any case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Security Registrar and their
19
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 GOVERNING LAW
(a) This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
(b) To the extent applicable, this Indenture is subject to the
provisions of the Trust Indenture Legislation that are required to be part of
this Indenture and shall be governed by such provisions.
SECTION 1.13 NON-BUSINESS DAY
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of a Security of any particular series shall
not be a Business Day at any Place of Payment with respect to Securities of that
series, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Security need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date or Repayment Date, or at the Stated Maturity, provided,
however, that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity, as
the case may be.
SECTION 1.14 IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
No recourse shall be had for the payment of the principal of
(and premium, if any) or the interest, if any, on any Security or Guarantee of
any series, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or the Guarantor, as
the case may be, or of any successor thereto, either directly or indirectly
through the Company or the Guarantor or any successor thereto, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment of penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities and Guarantees of each series are
solely corporate or partnership obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator, stockholder,
limited partner, officer or director, past, present or future, of the Company or
the Guarantor, or of any successor thereto, either directly or indirectly
through the Company or the Guarantor or any successor thereto, because of the
incurring of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities of any series, or to be implied herefrom or therefrom; and
that all such personal liability is hereby expressly released and waived as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities and Guarantees of each series.
20
SECTION 1.15 CERTAIN MATTERS RELATING TO CURRENCIES
(a) Subject to Section 3.12, each reference to any currency or currency
unit in any Security, or in the Board Resolution or supplemental indenture
relating thereto, shall mean only the referenced currency or currency unit and
no other currency or currency unit.
(b) The Trustee shall segregate moneys, funds and accounts held by the
Trustee in one currency or currency unit from any moneys, funds or accounts held
in any other currencies or currency units, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
(c) Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities and, in
particular, whenever any action or Act is to be taken hereunder by the Holders
of Securities denominated in different currencies or currency units, then for
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a Foreign
Currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of the noon spot rate
of exchange quoted by the Currency Determination Agent and specified to the
Trustee in an Officers' Certificate for such Foreign Currency or currency unit
into Dollars as of the date of such determination or the date the taking of such
action or Act by the Holders of the requisite percentage in principal amount of
the Securities is evidenced to the Trustee.
SECTION 1.16 LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, and any published notice may also be in an official language of the
country or province of publication
SECTION 1.17 APPOINTMENT OF AGENT FOR SERVICE;
SUBMISSION TO JURISDICTION
(a) By the execution and delivery of this Indenture, each of the
Company and the Guarantor appoints CT Corporation System at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its respective authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Securities, the Guarantees or this Indenture, but for that purpose only, and
agrees that service of process upon said CT Corporation System, directed to the
attention of Corporate Trust-Trustee Administration and written notice of said
service given by the Person serving the same to it, addressed as provided in
Section 1.5, shall be deemed in every respect effective service of process upon
it in any such suit or proceeding in any Federal or State court sitting in The
City of New York in the State of New York (a "New York Court"). Each of the
Company and the Guarantor hereby submits (for the purposes of any such suit or
proceeding) to the jurisdiction of a New York Court in which any such suit or
proceeding is so instituted, and waives, to the extent it may effectively do so,
any objection it may have now or hereafter to the laying of the venue of any
such suit, action or proceeding. Such appointment shall be irrevocable so long
as any of the Securities remain Outstanding until the appointment of a successor
by the Company or the Guarantor and such successor's acceptance of such
appointment. Upon such acceptance, the Company or the Guarantor shall notify the
Trustee of the name and address of such successor. Each of the Company and the
Guarantor further agrees to take any and all action, including the execution and
filing of any and all such documents and
21
instruments, as may be necessary to continue such designation and appointment of
said CT Corporation System or its successor in full force and effect so long as
any of the Securities shall be Outstanding. The Trustee shall not be obligated
and shall have no responsibility with respect to any failure by the Company or
the Guarantor to take any such action.
(b) Each of the Company and the Guarantor agrees, to the fullest extent
that it lawfully may do so, that final judgment in any such suit, action or
proceeding brought in a New York Court shall be conclusive and binding upon the
Company and the Guarantor, respectively, and may be enforced in the courts of
Canada (or any other courts to the jurisdiction of which Company or the
Guarantor, as the case may be, is subject) by a suit upon such judgment,
provided, however, that service of process is effected upon the Company or the
Guarantor in the manner specified in the foregoing paragraph or as otherwise
permitted by law; provided, however, that neither the Company or the Guarantor
waives, and the foregoing provisions of this sentence shall not constitute or be
deemed to constitute a waiver of, (i) any right to appeal any such judgment, to
seek any stay or otherwise to seek reconsideration or review of any such
judgment, (ii) any stay of execution or levy pending an appeal from, or a suit,
action or proceeding for reconsideration of, any such judgment, or (iii) any
other right or remedy of the Company or the Guarantor, as applicable, to the
extent not expressly waived in accordance with this Section 1.17.
(c) Nothing in this Section shall affect the right of the Trustee or
any Holder of any Security to serve process in any manner permitted by
applicable law or limit the right of the Trustee or any Holder of any Security
to bring proceedings against the Company or the Guarantor in the courts of any
jurisdiction or jurisdictions.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY
(a) The Securities of each series shall be in substantially the form or
forms (including global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
any law, with any rule or regulation made pursuant thereto, with any rules of
any securities exchange or to conform to usage, as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities. If temporary Securities of any series are issued
in global form as permitted by Section 3.4, the form thereof shall be
established as provided in the preceding sentence.
The definitive Securities and the Guarantees shall be printed,
lithographed, typewritten or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution thereof.
22
(b) (i) Securities of a series offered and sold in their initial
distribution in reliance on Regulation S shall be initially issued in the form
of one or more temporary Global Securities, in fully registered form without
interest coupons, with such applicable legends as are provided for in Section
2.5. Such Global Securities shall be registered in the name of the Depositary or
its nominee, and deposited with the Trustee, at its New York offices, as
custodian for the Depositary, duly executed by the Company and the Guarantor and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts at the Depositary of the depositories for Euroclear and for
Clearstream, for credit to the respective accounts of owners of beneficial
interests in such Securities or to such other accounts as they may direct. Until
such time as the Restricted Period in respect of securities of a series shall
have terminated, such temporary Global Securities shall be referred to herein as
"Temporary Regulation S Global Securities". On or after the termination of the
Restricted Period, interests in any Temporary Regulation S Global Security of a
series shall be exchangeable for corresponding interests in an unrestricted
Regulation S Global Security of the same series (each a "Regulation S Global
Security") in fully registered form without interest coupons, with such
applicable legends as are provided for in Section 2.5.
(ii) Interests in a Temporary Regulation S Global Security of a series
may be exchanged for interests in a Regulation S Global Security of the same
series representing the same underlying indebtedness only on or after the
termination of the Restricted Period with respect to such securities after
delivery by a beneficial owner of an interest therein to Euroclear or
Clearstream of a written certification (an "Owner Securities Certification")
substantially in the form of ANNEX C-1 hereto, and upon delivery by Euroclear or
Clearstream to the Trustee of a written certification (a "Depository Securities
Certification") substantially in the form attached hereto as ANNEX C-2. Upon
receipt of such certification, the Trustee shall exchange the portion of the
Temporary Regulation S Global Security covered by such certification for
interests in a Regulation S Global Security representing the same underlying
indebtedness.
Upon:
(A) the expiration of the Restricted Period,
(B) receipt by Euroclear or Clearstream, as the case may be, and
the Paying Agent of the certificates described in the
preceding paragraph,
(C) receipt by the Depositary of
(i) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing
the Depositary to credit or cause to be credited to a
specified Agent Member's account a beneficial
interest in the Regulation S Global Security in an
aggregate principal amount equal to that of the
beneficial interest in the Temporary Regulation S
Global Security for which the necessary certificates
have been delivered, and
(ii) a written order given in accordance with the
Applicable Procedures containing information
regarding the account of the Agent Member, and the
Euroclear or Clearstream account for which such Agent
Member's account is held, to be credited with, and
the account of the Agent Member to be debited for,
such beneficial interest, and
(D) receipt by the Trustee of notification from the Depositary of
the transactions described in (C) above,
23
the Trustee, as Security Registrar, shall instruct the Depositary to reduce the
aggregate principal amount of the Temporary Regulation S Global Security and to
increase the aggregate principal amount of the Regulation S Global Security, by
the aggregate principal amount of the beneficial interest in such Temporary
Regulation S Global Security to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Regulation S Global Security having an aggregate
principal amount equal to the amount by which the aggregate principal amount of
the Temporary Regulation S Global Security was reduced upon such transfer. The
aggregate principal amount of a Regulation S Global Security of a series may be
increased or decreased from time to time by adjustments made on the records of
the Trustee, as custodian for the Depositary, in connection with a corresponding
decrease or increase in the aggregate principal amount, as hereinafter provided.
(iii) Until such time as the Restricted Period shall have terminated,
investors may hold interests in the Regulation S Temporary Global Security only
through Euroclear and Clearstream, unless delivery of such beneficial interest
upon transfer shall be made through a Restricted Global Security in accordance
with the certification requirements discussed below in Section 3.5.
(c) Securities of a series offered and sold in their initial
distribution in reliance on Rule 144A shall be issued in the form of one or more
Global Securities (each, a "Restricted Global Security"), in definitive, fully
registered form without interest coupons, with such applicable legends as are
provided for in Section 2.5, except as otherwise permitted herein. Such Global
Securities shall be registered in the name of the Depositary or its nominee and
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and the Guarantor and authenticated by the Trustee as hereinafter
provided for credit to the respective accounts of owners of beneficial interests
in such Securities or to such other accounts as they may direct. The aggregate
principal amount of a Restricted Global Security of a series may be increased or
decreased from time to time by adjustments made on the records of the Trustee,
as custodian for the Depositary, in connection with a corresponding decrease or
increase in the aggregate principal amount, as hereinafter provided.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Subject to Sections 6.11 and 6.13, the Certificate of
Authentication on all Securities shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated in, and
issued under, the Indenture described herein.
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ TRUST COMPANY
OF NEW YORK, as Trustee
Date: By:
----------------------------------
As "Authenticating Agent"
SECTION 2.3 SECURITIES IN GLOBAL FORM
(a) If any Security of a series is issuable in global form, as
specified or contemplated by Section 3.1, then, notwithstanding Section
3.1(b)(19), any such Security may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 3.3
or Section 3.4. Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order.
(b) The provisions of the last sentence of Section 3.3 shall apply to
any Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented
thereby.
(c) Notwithstanding the provisions of Section 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of and any
premium and interest on any Security in global form shall be made to the Person
or Persons specified therein.
(d) Notwithstanding the provisions of Section 3.9 and except as
provided in the preceding paragraph, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a
Global Security, the Holder of such Global Security.
Section 2.4 FORM OF GUARANTEE
The Guarantee to be endorsed on any Security issued by the
Company, subject to Section 2.1, shall be in substantially the form set forth
below:
GUARANTEE
OF
ABITIBI-CONSOLIDATED INC.
For value received, Abitibi-Consolidated Inc., a corporation
duly organized and existing under the laws of Canada (herein called the
"Guarantor", which term includes any successor Person under the Indenture
referred to in the Security upon
25
which this Guarantee is endorsed), hereby unconditionally and irrevocably
guarantees to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of each such Holder the due and punctual payment of
the principal of, premium, if any, and interest on such Security and the due and
punctual payment of the sinking fund or analogous payments referred to therein,
if any, when and as the same shall become due and payable, whether on the Stated
Maturity Date, by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and of the Indenture referred to therein. In case
of the failure of Abitibi-Consolidated Company of Canada, a corporation duly
organized and existing under the laws of the Province of Quebec, Canada (herein
called "Company", which term includes any successor Person under such
Indenture), punctually to make any such payment of principal, premium, if any,
or interest or any such sinking fund or analogous payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether on the Stated Maturity Date or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor will pay to the Holders such Additional Amounts
as may become payable in respect of the Guarantees under Section 10.9 of the
Indenture.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely guarantor, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or such Indenture,
any failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge of a guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security, or increase the interest rate thereon, or
increase any premium payable upon redemption thereof, or alter the Stated
Maturity Date thereof, or increase the principal amount of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration or the maturity thereof pursuant to Article V of such Indenture.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby or with respect
to any sinking fund or analogous payment required under such Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, premium, if any, and interest on
such Security.
The Guarantor shall be subrogated to all rights of the Holder
of such Security and the Trustee against the Company in respect of any amounts
paid to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of or based upon such right of
subrogation until the principal of, premium, if any, and interest on all
Securities of the same series issued under such Indenture shall have been paid
in full.
This Guarantee shall be an unsecured, unsubordinated
obligation of the Guarantor, ranking PARI PASSU with all other existing and
future unsecured, unsubordinated indebtedness of the Guarantor, if any.
26
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantees of the
Guarantor, which are absolute and unconditional, of the due and punctual payment
of the principal of, premium, if any, and interest on, and any sinking fund or
analogous payments with respect to, the Security upon which this Guarantee is
endorsed.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of such Security shall have been
manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
Executed and dated the date on the face hereof.
ABITIBI-CONSOLIDATED INC.
By:
---------------------------------
Name
Title
SECTION 2.5 FORM OF LEGEND FOR SECURITIES
Unless otherwise specified as contemplated by Section 3.1 for
the Securities evidenced thereby, every Security that is a Global Security, a
Restricted Security or a Regulation S Security authenticated and delivered
hereunder shall bear one or more of the appropriate legends in substantially the
following forms, as appropriate:
[If the Security is a Restricted Security or a Regulation S
Security, then insert-
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN BEHALF
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, [if the Security is a
Restricted Security, then insert -- PRIOR TO THE DATE (THE "RESALE TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] ONLY (A) TO THE ISSUER
OR ANY OF ITS
27
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) AS LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) AND (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
[if the Security is a Restricted Security, then insert -- THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE TERMINATION DATE.]
EACH PURCHASER OF THIS GLOBAL NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED
THAT THE SELLER OF THIS GLOBAL NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]
[If Security is a Temporary Regulation S Global Security, then insert -- THIS
SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 3.4 OF THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
TEMPORARY GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL
SECURITY. NO EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL SECURITY MAY BE
MADE FOR AN INTEREST IN THE REGULATION S GLOBAL SECURITY EXCEPT ON OR AFTER THE
TERMINATION OF THE DISTRIBUTION COMPLIANCE PERIOD AND UPON DELIVERY OF THE OWNER
SECURITIES CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO
SUCH INTEREST IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
[If the Security is a Regulation S Security, then insert - THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Security is a Global Security, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and DTC is to be the Depositary therefor,
then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS
28
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
ARTICLE III
THE SECURITIES
SECTION 3.1 TITLE, PAYMENT AND TERMS
(a) The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
(b) The Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution and, except as otherwise provided
herein, each such series shall be unsecured and shall rank pari passu with each
other and with all other unsecured and unsubordinated indebtedness for borrowed
money of the Company. With respect to any particular series of Securities and
the Guarantees to be endorsed thereon, the Board Resolution relating thereto
shall specify:
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series which may be authenticated and delivered under this
Indenture (except for Securities
29
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of that series pursuant to Section 3.4,
Section 3.5, 3.6, 9.6, 11.7 or 13.5);
(3) the extent and manner, if any, to which payment on or in
respect of Securities of that series and the related Guarantees will be senior
or will be subordinated to the prior payment of other liabilities and
obligations of the Company and the Guarantor;
(4) the percentage or percentages of principal face amount at
which Securities of that series shall be issued;
(5) the date or dates (or manner by which such date or dates
will be determined or extended) on which the principal of the Securities of that
series is payable (which, if so provided in such Board Resolution may be
determined by the Company from time to time and set forth in the Securities of
the series issued from time to time);
(6) if other than the principal amount thereof, the portion of
the principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or
the method by which such portion shall be determined;
(7) the rate or rates (whether fixed or variable) at which the
Securities of that series shall bear interest (if any) (or the manner of
calculation thereof) and the date or dates from which such interest shall accrue
(which, in either case or both, if so provided in such Board Resolution may be
determined by the Company from time to time and set forth in the Securities of
the series issued from time to time), the Interest Payment Dates on which such
interest shall be payable (or manner of determining the same) and the Regular
Record Dates for the interest payable on any Securities on any Interest Payment
Date and the extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 3.7;
(8) the place or places where, subject to the provisions of
Section 10.2, the principal of (and premium, if any) and interest, if any, on
Securities of that series shall be payable, any Securities of that series may be
surrendered for registration of transfer, any Securities of that series may be
surrendered for exchange, and notices and demands to or upon the Company in
respect of the Securities of that series, the related Guarantees and this
Indenture may be served;
(9) if other than Dollars, the currency or currency unit in
which the Securities of that series are determined or in which payment of the
principal of (and premium, if any) and interest, if any, on the Securities of
that series shall be made and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of the provisions of Section 3.12;
(10) Intentionally deleted;
(11) Intentionally deleted;
(12) (i) whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities and, in such
case, the Depositary for such Global
30
Security or Securities, whether such global form shall be permanent or
temporary, if applicable, the Exchange Date, and whether beneficial owners of
interests in any permanent Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 3.5 and, (ii) whether (a)
Restricted Global Securities of the series may be exchanged for Regulation S
Global Securities of the series, (b) Regulation S Global Securities of the
series may be exchanged for Restricted Global Securities of the series or (c)
Restricted Global Securities of the series may be exchanged for unrestricted
Global Securities.
(13) the obligation, if any, of the Company to redeem or
purchase Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the currency or currency unit in
which, and the terms and conditions upon which, Securities of that series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(14) the period or periods within which, the price or prices
at which, the currency or currency unit in which, and the terms and conditions
upon which, Securities of that series may be redeemed or purchased, in whole or
in part, at the option of the Company or otherwise;
(15) if the Securities of that series are to be repayable
prior to Maturity at the option (which option may be conditional) of the Holder
thereof, the terms and conditions upon which such Securities will be so
repayable and the price or prices in the currency or currency unit in which such
Securities will be repayable;
(16) the index, if any, used to determine the amount of
payments of principal of (and premium, if any) or interest, if any, on the
Securities of that series;
(17) if the Securities of that series are to be convertible
into or exchangeable for any securities of any Person (the Company or the
Guarantor), the terms and conditions upon which such Securities will be so
convertible or exchangeable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to the Securities of
that series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(19) the denominations in which any Securities of that series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(20) if a Person other than The Bank of Nova Scotia Trust
Company of New York is to act as Trustee for the Securities of that series, the
name and location of the Corporate Trust Office of such Trustee;
(21) if the principal of (and premium, if any) and interest,
if any, on the Securities of that series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currency unit other than that
in which such Securities are denominated or stated to
31
be payable, in accordance with provisions in addition to or in lieu of, or in
accordance with the provisions of, Section 3.12, the period or periods within
which (including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of determining the exchange
rate between the currency or currency unit in which such Securities are
denominated or stated to be payable and the currency or currency unit in which
such Securities are to be so payable;
(22) the designation of the original Currency Determination
Agent, if other than Canadian Imperial Bank of Commerce;
(23) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of that series may be determined,
at the election of the Company or a Holder thereof, with reference to an index
based on a currency or currency unit other than that in which such Securities
are denominated or stated to be payable or any other index, the manner in which
such amounts shall be determined;
(24) the date as of which any Global Security representing
Outstanding Securities of that series shall be dated if other than the date of
original issuance of the first Security of that series to be issued;
(25) any provisions granting special rights to holders of
Securities of that series or to the Company upon the occurrence of such events
as may be specified;
(26) the Person to whom any interest on any Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, and the extent to which, or the
manner in which, any interest payable on a temporary Global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 3.4;
(27) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions;
(28) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(29) the application, if any, of Sections 10.9 or 11.8 to the
Securities of that series and the related Guarantees;
(30) intentionally deleted;
(31) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent; and
(32) any other terms of that series (which terms shall not be
inconsistent with the requirements of the Trust Indenture Legislation or the
provisions of this Indenture).
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(c) All Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution. The terms of such Securities
and the related Guarantees, as set forth above, may be determined by the Company
and the Guarantor from time to time if so provided in or established pursuant to
the authority granted in a Board Resolution. All Securities of any one series
need not be issued at the same time, and unless otherwise provided, a series may
be reopened for issuance of additional Securities of such series.
SECTION 3.2 DENOMINATIONS
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.1. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Securities of such series, other than Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board or its President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, executed by
or on behalf of the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities.
(d) If all the Securities of any series are not to be issued at one
time and if the Board Resolution establishing such series shall so permit, such
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities, including, without limitation, procedures with
respect to interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
(e) In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating:
(1) that the form or forms of such Securities and the related
Guarantees have been established in conformity with the provisions of this
Indenture;
33
(2) that the terms of such Securities and the related
Guarantees have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, and the related guarantees of
the Guarantor endorsed thereon, will constitute the legal, valid and binding
obligations of the Company and the Guarantor, as the case may be, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and the related Guarantees.
(f) Notwithstanding any contrary provision herein, if all Securities of
a series are not to be originally issued at one time, it shall not be necessary
to deliver the Board Resolution, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to Section 1.2 and Section 2.1 at or prior to the
time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
(g) Each Security shall be dated the date of its authentication.
(h) No Security or Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein manually executed by the Trustee for such Security or in the name of
such Trustee pursuant to Section 6.13, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled, together with the
Guarantee endorsed thereon, to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
3.10 together with a written statement (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.4 TEMPORARY SECURITIES
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, and
having endorsed thereon a Guarantee executed by the Guarantor, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Such temporary Securities may be in global
form.
34
(b) Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series, at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
with Guarantees endorsed thereon executed by the Parent. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE; CERTAIN TRANSFERS AND EXCHANGES
(a) REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee and
in any office or agency to be ascertained by the Company to be a Place of
Payment in accordance with Section 10.2, a register for each series of its
Securities (the registers maintained in the Corporate Trust Office of the
Trustee and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor, and having endorsed thereon a Guarantee
executed by the Parent..
Subject to this Section 3.5(a) and to Section 3.5(b), at the
option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denomination and of a like
aggregate principal amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities, and the Parent shall execute the Guarantees endorsed
thereon, which the Holder making the exchange is entitled to receive.
All Securities and Guarantees issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the Company
and the Guarantor, respectively,
35
evidencing the same continuing debt, and entitled to the same benefits under
this Indenture, as the Securities and the Guarantees surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, 11.7 or 13.5 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days before the day of
the selection for redemption of Securities of that series under Section 11.3 or
12.3 and ending at the close of business on the relevant Redemption Date, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security of any series may be exchanged in whole or in
part for Securities of that series registered, and no transfer of a Global
Security of a series in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof
unless (A) the Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for the Global Security and a successor
Depositary has not been appointed by the Company within 90 days of receipt by
the Company of such notification or (ii) has ceased to be a clearing agency
registered under the Exchange Act and a successor Depositary has not been
appointed by the Company within 90 days after the Company became aware of such
cessation, (B) the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of definitive Securities, (C) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security or (D) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this purpose as contemplated
by Section 3.1. Any Global Security of a series exchanged pursuant to clause (A)
above shall be so exchanged in whole and not in part and any Global Security of
a series exchanged pursuant to
36
clause (B), (C) or (D) above may be exchanged in
whole or from time to time in part as directed by the Company or the Trustee.
(3) Securities issued in exchange for a Global Security of a
series or any portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear any
legends required hereunder. Any Global Security of a series to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Security
Registrar. With regard to any Global Security of a series to be exchanged in
part, either such Global Security shall be so surrendered for exchange or, if
the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the aggregate principal amount thereof shall be
reduced by an amount equal to the portion thereof to be so exchanged by means of
an appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and make available for
delivery a Security of such series issuable on such exchange to or upon the
written order of the Depositary or an authorized representative thereof.
(4) In the event of the occurrence of any of the events
specified in clause (2) above, the Company shall promptly make available to the
Trustee a reasonable supply of Securities in definitive, registered form without
interest coupons.
(5) No Agent Members nor any other Persons on whose behalf
Agent Members may act (including Euroclear and Clearstream and account holders
and participants therein and any holder or owner of any beneficial interest in
any Global Security) shall have any rights under the Indenture with respect to
any Global Security, or under any Global Security, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and holder of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or such nominee, as the case may
be, or impair, as between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any Security.
Neither the Company, the Trustee nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Depositary or by any Agent
Member or any other Person that acquires a beneficial interest in a Security.
Neither the Trustee nor the Depositary shall have any duty or obligation to
monitor compliance with any restrictions on transfer with respect to the
transfer of any interest in the Securities (including transfers between Agent
Members or any such other Persons that acquire a beneficial interest in a
Security) other than to require delivery of any documents or certificates
specifically required by this Indenture.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 3.5(b) shall be made only in accordance with this Section
3.5(b).
37
(i) LIMITATION ON TRANSFERS OF A GLOBAL SECURITY. A
Global Security of a series may not be transferred, in whole or in
part, to any Person other than DTC or a nominee thereof, and no such
transfer to any such other Person may be registered; PROVIDED that this
clause (i) shall not prohibit any transfer of a Security of a series
that is issued in exchange for a Global Security of that series but is
not itself a Global Security pursuant to Section 3.5(a). No transfer of
a Security of a series to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section
3.5(b)(i) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 3.5(b).
(ii) TEMPORARY REGULATION S GLOBAL SECURITY. If the
owner of a beneficial interest in a Temporary Regulation S Global
Security of a series wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in such Temporary Regulation S Global Security, such transfer
may be effected, subject to the rules and procedures of the Depositary,
Euroclear and Clearstream, in each case to the extent applicable and as
in effect from time to time (the "Applicable Procedures"), only in
accordance with this Section 3.5(b)(ii). Upon delivery (A) by a
beneficial owner of an interest in a Temporary Regulation S Global
Security to Euroclear or Clearstream, as the case may be, of an Owner
Securities Certification substantially in the form of ANNEX C-1 hereto,
(B) by the transferee of such beneficial interest in the Temporary
Regulation S Global Security to Euroclear or Clearstream, as the case
may be, of a written certification (a "Transferee Securities
Certification") substantially in the form of ANNEX C-3 hereto and (C)
by Euroclear or Clearstream, as the case may be, to the Trustee, as
Security Registrar, of a Depository Securities Certification
substantially in the form of ANNEX C-2 hereto, the Trustee may direct
either Euroclear or Clearstream, as the case may be, to reflect on its
records the transfer of a beneficial interest in the Temporary
Regulation S Global Security from the beneficial owner providing the
Owner Securities Certification to the Person providing the Transferee
Securities Certification.
(iii) RESTRICTED GLOBAL SECURITY TO TEMPORARY REGULATION
S GLOBAL SECURITY. If the holder of a beneficial interest in the
Restricted Global Security wishes at any time to transfer such interest
to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Temporary Regulation S Global Security, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with the provisions of this Section 3.5(b)(iii). Upon
receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited to
a specified Agent Member's account a beneficial interest in the
Temporary Regulation S Global Security in an aggregate principal amount
equal to that of the beneficial interest in the Restricted Global
Security to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information regarding the
38
account of the Agent Member (and the Euroclear or Clearstream account,
as the case may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest and (C) a
certificate in substantially the form set forth in ANNEX A-1 given by
the holder of such beneficial interest, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the aggregate
principal amount of the applicable Restricted Global Security, and to
increase the aggregate principal amount of the Temporary Regulation S
Global Security, by the aggregate principal amount of the beneficial
interest in the Restricted Global Security to be so transferred, and to
credit or cause to be credited to the account of the Person specified
in such instructions (which shall be the Agent Member for Euroclear or
Clearstream or both, as the case may be) a beneficial interest in the
Temporary Regulation S Global Security having an aggregate principal
amount equal to the amount by which the aggregate principal amount of
the Restricted Global Security was reduced upon such transfer.
(iv) RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL
SECURITY. If the holder of a beneficial interest in a Restricted Global
Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this
Section 3.5(b)(iv). Upon receipt by the Trustee, as Security Registrar,
of (A) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or
cause to be credited to a specified Agent Member's account a beneficial
interest in a Regulation S Global Security in an aggregate principal
amount equal to that of the beneficial interest in the Restricted
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, if applicable, the
Euroclear or Clearstream account, as the case may be) to be credited
with, and the account of the Agent Member to be debited for, such
beneficial interest and (C) a certificate in substantially the form set
forth in ANNEX A-2 given by the holder of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the Depositary to reduce
the aggregate principal amount of the applicable Restricted Global
Security, and to increase the aggregate principal amount of the
Regulation S Global Security, by the aggregate principal amount of the
beneficial interest in the Restricted Global Security to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Regulation S Global Security having an aggregate principal amount equal
to the amount by which the aggregate principal amount of the Restricted
Global Security was reduced upon such transfer.
(v) TEMPORARY REGULATION S GLOBAL SECURITY OR
REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY. If the
holder of a beneficial interest in a Temporary Regulation S Global
Security or a Regulation S Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the Restricted Global Security,
such transfer may be effected, subject to the Applicable Procedures,
39
only in accordance with this Section 3.5(b)(v). Upon receipt by the
Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in a Restricted Global
Security in an aggregate principal amount equal to that of the
beneficial interest in the Temporary Regulation S Global Security or
the Regulation S Global Security to be so transferred, (B) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member (and, if applicable, the
Euroclear or Clearstream account, as the case may be) to be debited
for, such beneficial interest and (C) a certificate in substantially
the form set forth in ANNEX B given by the owner of such beneficial
interest, the Trustee, as Security Registrar, shall instruct the
Depositary to reduce the aggregate principal amount of the applicable
Temporary Regulation S Global Security or the Regulation S Global
Security, as the case may be, and to increase the aggregate principal
amount of the Restricted Global Security, by the aggregate principal
amount of the beneficial interest in the Temporary Regulation S Global
Security or the Regulation S Global Security to be so transferred, and
to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted
Global Security having an aggregate principal amount equal to the
amount by which the aggregate principal amount of the Temporary
Regulation S Global Security or the Regulation S Global Security, as
the case may be, was reduced upon such transfer.
(vi) NON-GLOBAL RESTRICTED SECURITY TO GLOBAL SECURITY.
If the Holder of a Restricted Security (other than a Global Security)
wishes at any time to transfer all or a portion of such Security to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security, the Temporary Regulation S
Global Security or the Regulation S Global Security, in each case, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 3.5(b)(vi). Upon receipt by (1) the
Depositary of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Depositary to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Security, the Temporary
Regulation S Global Security or the Regulation S Global Security, as
the case may be, in a specified Amount Payable at Maturity equal to the
aggregate principal amount of the Restricted Security (or portion
thereof) to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Agent Member (and, in the case of any transfer pursuant
to Regulation S, the Euroclear and Clearstream account for which such
Agent Member's account is held, or if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (C) an
appropriately completed certificate substantially in the form set forth
in ANNEX D-1 hereto, if the specified account is to be credited with a
beneficial interest in a Restricted Global Security, or ANNEX D-2
hereto, if the specified account is to be credited with a beneficial
40
interest in the Temporary Regulation S Global Security or the
Regulation S Global Security, given by the holder of such beneficial
interest, and (2) the Trustee of (A) the Restricted Security to be so
transferred, (B) the notification from the Depositary of the
transaction described in (1) above and (C) the certificate described in
(1)(C) above, the Trustee, as Security Registrar, shall cancel such
Restricted Security (and issue a new Security in respect of any
untransferred portion thereof) as provided in Section 3.5(a) and
increase the aggregate principal amount of the Restricted Global
Security, Temporary Regulation S Global Security or Regulation S Global
Security, as the case may be, by the specified aggregate principal
amount as provided in Section 3.5(b)(iii).
The Trustee shall not be required to accept for such registration
of transfer or exchange any Restricted Security unless the Trustee and
the Company are satisfied that such transfer or exchange is being
effected in compliance with the restrictions on transfer as set forth
in this Indenture and in such Security.
(vii) INTERESTS IN TEMPORARY REGULATION S GLOBAL SECURITY
TO BE HELD THROUGH EUROCLEAR OR CLEARSTREAM. Until the termination of
the Restricted Period, interests in the Temporary Regulation S Global
Securities may be held only through Agent Members acting for and on
behalf of Euroclear and Clearstream, PROVIDED that this clause (vi)
shall not prohibit any transfer in accordance with Section 3.5(b)(v)
hereof.
(viii) In addition to the foregoing, the Trustee, as
Security Registrar, shall effect and register, upon receipt of a
written request from the Company to do so, a transfer not otherwise
permitted by this Section 3.5(b), such registration to be done in
accordance with the otherwise applicable provisions of this Section
3.5, upon the furnishing by the proposed transferor or transferee of a
written opinion of counsel (which opinion and counsel are satisfactory
to the Company and the Trustee) to the effect that, and such other
certifications or information as the Company or the Trustee may require
to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. The Company may require such
transfer to be effected by the issuance of definitive Securities.
(c) SECURITIES ACT LEGENDS. Restricted Securities and their Successor
Securities shall bear the legends required by Section 2.5 subject to the
following:
(i) subject to the following Clauses of this Section
3.5(c), a Security of a series or any portion thereof which is
exchanged, upon transfer or otherwise, for a Global Security of that
series or any portion thereof shall bear the Securities Act Legend
borne by such Global Security while represented thereby;
(ii) subject to the following Clauses of this Section
3.5(c), a new Security of a series which is not a Global Security and
is issued in exchange for another Security of that series (including a
Global Security) or any portion
41
thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Security, PROVIDED that, if such new
Security is required pursuant to Section 3.5(b)(v) to be issued in the
form of a Restricted Security, it shall bear a Restricted Securities
Legend and, if such new Security is so required to be issued in the
form of a Regulation S Security, it shall bear a Regulation S Legend;
(iii) Any Securities registered under the Securities Act
and Regulation S Securities that are not Temporary Regulations S
Securities shall not bear a Securities Act Legend;
(iv) at any time after the Securities of a series may be
freely transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the
Securities Act, a new Security of that series which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Security of that series (other than a Global Security) or any portion
thereof which bears such a legend if the Trustee has received an
Unrestricted Securities Certificate, satisfactory to the Trustee and
duly executed by the Holder of such legended Security or his attorney
duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new
Security in exchange for or in lieu of such other Security as provided
in this Article Three;
(v) a new Security of a series which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Security of that series (other than a Global Security) or any portion
thereof which bears such a legend if, in the Company's judgment,
placing such a legend upon such new Security is not necessary to ensure
compliance with the registration requirements of the Securities Act,
and the Trustee, at the direction of the Company, shall authenticate
and deliver such a new Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 3.5(c), a Successor Security of a Security of a series that
does not bear a particular form of Securities Act Legend shall not bear
such form of legend unless the Company has reasonable cause to believe
that such Successor Security is a "restricted security" within the
meaning of Rule 144 under the Securities Act, in which case the
Trustee, at the direction of the Company, shall authenticate and
deliver a new Security of that series bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this
Article Three.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements
42
hereof. The Trustee shall not have any responsibility for any actions taken or
not taken by the Depositary.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
(a) If (i) any mutilated Security is surrendered to the Trustee or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for such mutilated Security, a new Security of
the same series and in a like principal amount and having endorsed thereon a
Guarantee executed by the Parent and of a like Stated Maturity and with like
terms and conditions and bearing a number not contemporaneously outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, and in case of destruction,
loss or theft, evidence satisfactory to the Company and the Trustee and any
agent of either of them of the destruction, loss or theft of such Security and
the ownership thereof.
(c) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee) connected therewith.
(d) Every new Security of any series, and the Guarantee endorsed
thereon, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for any mutilated Security, shall constitute an
original additional contractual obligation of the Company and the Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder.
(e) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
(a) Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment; provided, however, that interest, if any,
payable at maturity will be payable to the Person to whom principal shall be
payable.
43
(b) Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
maintained by the payee with a bank located inside the United States or Canada.
(c) Intentionally deleted.
(d) Any interest on any Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date and, if applicable, interest on such defaulted interest (to the
extent lawful) (herein collectively called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record Date
by virtue of having been such Holder; and such Defaulted Interest may be paid by
the Company as provided in clause (1) or (2) below, as determined by the
Company:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of that series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of that
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the currency or currency
unit in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series and except
as provided in Sections 3.12(b), 3.12(d) and 3.12(e)), equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of that series
at his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
that series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any
44
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice is given by the Company to
the Trustee of the proposed manner of payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(e) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 OPTIONAL RESET OF INTEREST DATE AND EXTENSION
OF STATED MATURITY
(a) The provisions of this Section 3.8 may be made applicable to any
series of Securities pursuant to Section 3.1 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 3.1).
(b) The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security,
which notice shall specify the information to be included in the Reset Notice
(as defined). Not later than 40 days prior to each Optional Reset Date, the
Trustee shall transmit, in the manner provided for in Section 1.6, to the Holder
of any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
(c) Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 1.6, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to Section 3.8(d), will bear such
higher interest rate (or such higher spread or spread multiplier, if
applicable).
45
(d) The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article XIII for
repayment at the option of Holders except that the period for delivery or
notification to the Company shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
(e) The Stated Maturity of any Security of such series may be extended
at the option of the Company for the period or periods specified on the face of
such Security (each an "Extension Period") up to but not beyond the date (the
"Final Maturity") set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to the Stated Maturity
of such Security in effect prior to the exercise of such option (the "Original
Stated Maturity"). If the Company exercises such option, the Trustee shall
transmit, in the manner provided for in Section 1.6, to the Holder of such
Security not later than 40 days prior to the Original Stated Maturity a notice
(the "Extension Notice") indicating (i) the election of the Company to extend
the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if
any, applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in Section 3.8(f), such Security will have the same terms as prior to the
transmittal of such Extension Notice.
(f) Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 1.6, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
(g) If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article XIII for repayment at the option
of Holders, except that the period for delivery or notification to the Company
shall be at least 25 but not more than 35 days prior to the Original Stated
Maturity and except that, if the Holder has tendered any Security for repayment
pursuant to an Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
46
SECTION 3.9 PERSONS DEEMED OWNERS
(a) Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any such Security is registered as the owner
of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.7) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
(b) Intentionally deleted.
(c) None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
(d) Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of any of
the foregoing from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10 CANCELLATION
All Securities surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange, or delivered
in satisfaction of any sinking fund payment, shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, in the case of
Securities shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and
certification of their disposal shall be delivered to the Company unless by
Company Order the Company shall direct that cancelled Securities be returned to
it.
SECTION 3.11 COMPUTATION OF INTEREST
(a) Except as otherwise specified as contemplated by Section 3.1 for
Securities of any particular series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
(b) For the purposes of disclosure under the Interest Act (Canada) (but
for no other purpose), without assuming the principle of the deemed reinvestment
of interest, the yearly rate of interest (the "Nominal Yearly Rate") to which
any rate of interest (the "Applicable Rate")
47
calculated on any basis other than a full year is equivalent, is the rate
determined in accordance with the following formula:
A = B x C
---
360
where:
A means the Nominal Yearly Rate (expressed as a decimal
fraction) to be determined for the purposes of
disclosure under the Interest Act (Canada);
B means the Applicable Rate, and shall, for the
Securities of any series and for any period, be equal
to that rate (expressed as a decimal fraction)
obtained by dividing the amount of interest payable
on Securities of such series for such period by the
principal amount of Securities of such series
Outstanding for such period, and multiplying the
quotient obtained by a fraction the numerator of
which is 360 and the denominator of which is the
actual number of days elapsed in such period; and
C means the actual number of days in the year
commencing on the first day of the period in respect
of which the Applicable Rate applies.
SECTION 3.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT
OF SECURITIES
(a) Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, with respect to Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have not
made the election provided for in paragraph (b) below, payment of the principal
of (and premium, if any) and interest, if any, on any Security of such series
will be made in the currency or currency unit in which such Security is payable.
This Section 3.12 may be modified or superseded with respect to any Securities
pursuant to Section 3.1.
(b) It may be provided pursuant to Section 3.1 with respect to
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any) or interest, if any, on such Securities in any of the currencies or
currency units which may be designated for such election by delivering to the
Trustee a written election with signature guaranteed and in form and substance
satisfactory to the Trustee established pursuant to Section 3.1, not later than
the close of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
currency or currency unit, such election will remain in effect for such Holder
until changed by such Holder by written notice to the Trustee (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given by
the Company pursuant to Article XI or with respect to which the Company has
deposited funds pursuant to Article IV). In the event any Holder makes any such
election pursuant to the preceding sentence, such election will not be effective
on any transferee of such Holder and such transferee shall be paid in the
currency or currency unit indicated pursuant to paragraph (a) above unless such
transferee makes an election
48
pursuant to the preceding sentence; provided, however, that such election, if in
effect at the time funds are deposited with respect to the Securities of such
series as described in Section 4.1(a)(2), will be effective on any transferee of
such Holder unless otherwise specified pursuant to Section 3.1 for the
Securities of such series. Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in Section
3.12(a). In no case may a Holder of Securities of any series elect to receive
payments in any currency or currency unit as described in this Section 3.12(b)
following a deposit of funds with respect to the Securities of such series as
described in Section 4.1(a)(2). The Trustee shall notify the Currency
Determination Agent as soon as practicable after the Election Date of the
aggregate principal amount of Securities for which Holders have made such
written election.
(c) If the election referred to in Section 3.12(b) has been provided
for pursuant to Section 3.1, then not later than the fourth Business Day after
the Record Date for each payment date for Securities of any series, the Currency
Determination Agent will deliver to the Company a written notice specifying, in
the currency or currency unit in which Securities of such series are payable,
the respective aggregate amounts of principal of (and premium, if any) and
interest, if any, on the Securities to be made on such payment date, specifying
the amounts in such currency or currency unit so payable in respect of the
Securities of such series as to which the Holders thereof shall have elected to
be paid in a currency or currency unit other than that in which such series is
denominated as provided in Section 3.12(b). If the election referred to in
Section 3.12(b) has been provided for pursuant to Section 3.1 and if at least
one Holder has made such election, then, on the second Business Day preceding
such payment date the Company will deliver to the Trustee an Exchange Rate
Officers' Certificate in respect of the Dollar, Foreign Currency or currency
unit payments to be made on such payment date. The Dollar, Foreign Currency or
currency unit amount receivable by Holders of Securities who have elected
payment in a currency or currency unit as provided in Section 3.12(b) shall,
unless otherwise provided pursuant to Section 3.1, be determined by the Company
on the basis of the applicable Market Exchange Rate in effect on the third
Business Day (the "Valuation Date") immediately preceding each payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency or
any other currency unit in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to Section
3.12(b), then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities denominated
or payable in such Foreign Currency or such other currency unit occurring after
the last date on which such Foreign Currency or such other currency unit was
available (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. The Dollar amount to be paid by the Company
to the Trustee and by the Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the currency unit, in each case as determined by the Currency Determination
Agent in the manner provided in Sections 3.12(f) or 3.12(g).
49
(e) If the Holder of a Security denominated in any currency or currency
unit shall have elected to be paid in another currency or currency unit as
provided in Section 3.12(b), and a Conversion Event occurs with respect to such
elected currency or currency unit, such Holder shall receive payment in the
currency or currency unit in which payment would have been made in the absence
of such election. If a Conversion Event occurs with respect to the currency or
currency unit in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in Section
3.12(d).
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Currency Determination Agent and shall be obtained for each subsequent
payment after the Conversion Date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Currency Determination Agent and subject to the provisions of Section
3.12(h) shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have
the following meanings:
(i) "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
(j) A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were represented
in the relevant currency unit on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after the Conversion
Date two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be replaced
by an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in such
single currency, and such amount shall thereafter be a Specified Amount and such
single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more currencies, each of whose Dollar Equivalent at the
Market Exchange Rate on the date of such replacement shall be equal to the
Dollar Equivalent of the Specified Amount of such former Component Currency at
the Market Exchange Rate on such date divided by the number of currencies into
which such Component Currency was divided, and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, a Conversion Event
(other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such currency unit and
is continuing on the applicable Valuation Date, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar
50
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
(k) "Election Date" shall mean any date for any series of Securities as
specified pursuant to Section 3.1(b)(21) by which the written election referred
to in Section 3.12(b) may be made, such date to be not later than the Record
Date for the earliest payment for which such election may be effective.
(l) All decisions and determinations of the Currency Determination
Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes in the
Specified Amounts as specified above shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant currency or currency units. The Currency
Determination Agent shall promptly give written notice to the Company and the
Trustee of any such decision or determination.
(m) In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee and Currency Determination Agent (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.6 to
the Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to any other currency unit in which Securities are denominated or
payable, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee and Currency Determination Agent (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.6 to
the Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent change
in any Component Currency as set forth in the definition of Specified Amount
above, the Company, after learning thereof, will similarly give written notice
to the Trustee and Currency Determination Agent.
(n) The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent and shall not otherwise have any duty or obligation to
determine such information independently.
SECTION 3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR
CURRENCY DETERMINATION AGENT
(a) If and so long as the Securities of any series (i) are denominated
in a currency unit or a currency other than Dollars or (ii) may be payable in a
currency unit or a currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, a Currency
Determination Agent. The Company will cause the Currency Determination Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.1 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 3.12.
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(b) No resignation of the Currency Determination Agent and no
appointment of a successor Currency Determination Agent pursuant to this Section
shall become effective until the acceptance of appointment by the successor
Currency Determination Agent as evidenced by a written instrument delivered to
the Company and the Trustee accepting such appointment executed by the successor
Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Currency Determination Agent for any cause, with respect to the Securities of
one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Currency Determination Agent or Currency Determination Agents with
respect to the Securities of that or those series (it being understood that any
such successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
SECTION 3.14 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF SECURITIES
OF ANY SERIES
(a) The Company shall be deemed (except as to any surviving rights of
registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto and any right to receive Additional
Amounts as contemplated by Section 10.9) to have satisfied and discharged the
entire indebtedness on all the Securities of any particular series and, so long
as no Event of Default shall be continuing, the Trustee, upon Company Request
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when:
(1) Either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) any Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (ii) Securities of such
series for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such
52
trust, as provided in Section 10.3(e)) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series not theretofore so
delivered to the Trustee for cancellation:
(i) have become due and payable; or
(ii) will become due and payable at their Stated
Maturity within one year; or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of
clause (B) (i), (ii) or (iii) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount, in the currency or currency
unit in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) The Company has paid or caused to be paid all other sums
payable with respect to the Securities of such series; and
(3) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Securities of such series have been complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7 and to any
Authenticating Agent under Section 6.13 and, if money shall have been deposited
with the Trustee pursuant to Section 4.1(a)(1)(B), the obligations of the
Trustee under Section 4.2 and Section 10.9(d) shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 10.3(e), all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
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ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT
"Event of Default" wherever used herein with respect to any
particular series of Securities means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment when
and as due by the terms of the Securities of that series and by Article XII; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor contained in this Indenture in respect
of the Securities of that series or the related Guarantee (other than a covenant
or warranty a default in the performance of which or the breach of which is
specifically dealt with elsewhere in this Section) and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of all
Outstanding Securities of any series affected thereby a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or the Guarantor
in an involuntary case or proceeding under any applicable bankruptcy law or (B)
a decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or the
Guarantor under any applicable bankruptcy law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or the Guarantor or of substantially all of the property of the
Company or the Guarantor, or ordering the winding up or liquidation of the
affairs of the Company or the Guarantor, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect for
a period of 90 consecutive days; or
(6) the commencement by the Company or the Guarantor of a
voluntary case or proceeding under any applicable bankruptcy law, or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or the Guarantor to the entry of a decree or order for
relief in respect of the Company or the Guarantor in an involuntary case or
proceeding under any applicable bankruptcy law, or to the commencement of any
bankruptcy or insolvency case
54
or proceeding against the Company or the Guarantor, or the filing by the Company
or the Guarantor of a petition or answer or consent seeking reorganization or
relief under any applicable bankruptcy law, or the consent by the Company or the
Guarantor to the filing of such petition or to the appointment of or the taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or the Guarantor or of substantially all of
the property of the Company or the Guarantor, or the making by the Company or
the Guarantor of an assignment for the benefit of creditors, or the admission by
the Company or the Guarantor in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
or the Guarantor in furtherance of any such action; or
(7) failure to pay when due, after the expiration of any
applicable grace period, any portion of the principal of, or involuntary
acceleration of the maturity of, indebtedness for borrowed money of the
Guarantor or any Subsidiary of the Guarantor having an aggregate principal
amount outstanding in excess of the greater of $100,000,000 and 5% of the
Consolidated Net Tangible Assets of the Guarantor as at the end of the then last
completed financial quarter of the Guarantor; or
(8) any encumbrancer taking possession of substantially all of
the property of the Company or the Guarantor; or
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
(a) If an Event of Default with respect to any particular series of
Securities occurs and is continuing, then and in every such case either the
Trustee or the Holders of at least 25% in principal amount of the Outstanding
Securities of that series may declare the entire principal amount (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of such series), of all the Securities of such series and all interest
thereon to be immediately due and payable, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration of
acceleration such principal or such lesser amount, as the case may be, together
with any accrued interest and all other amounts owing thereunder and hereunder,
shall become immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived.
(b) At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay in the currency or currency unit in which
that series of Securities is payable
55
(except as otherwise specified pursuant to Section 3.1 for the Securities of
such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d)
and 3.12(e)),
(A) all overdue interest, if any, on all Outstanding
Securities of that series,
(B) all unpaid principal of (and premium, if any) any
Outstanding Securities of that series which has become due otherwise
than by such declaration of acceleration, and interest thereon from the
date such principal became due, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest on overdue interest, if any, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to the Securities of
such series, other than the non-payment of the principal of (or premium, if any,
on) Securities of that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
(c) Notwithstanding the preceding paragraph (b), in the event a
declaration of acceleration in respect of the Securities because of an Event of
Default specified in Section 5.1(7) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE
(a) Each of the Company and the Guarantor covenants that if:
(1) default is made in the payment of any interest upon any
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity;
56
the Company or the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest, if
any, with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any
overdue installments of interest at a rate per annum equal to the rate borne by
such Securities (or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
(b) If the Company or the Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceedings to judgment or final decree, and
may enforce the same against the Company, the Guarantor or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, the Guarantor or
any other obligor upon the Securities, wherever situated.
(c) If an Event of Default with respect to Securities of any particular
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
that series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relating to the Company, the Guarantor or any other
obligor upon the Securities of any series or the property of the Company, the
Guarantor or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal (or lesser amount in the case of Original Issue
Discount Securities) of any Security of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount Securities)
(and premium, if any) and interest, if any, owing and unpaid in respect of the
Securities or the Guarantees of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 6.7) and of the Holders of the
Securities of such series allowed in such judicial proceeding; and
57
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
Securities, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.7.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of such series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES
All rights of action and claims under this Indenture or the
Securities or the Guarantees of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 6.7, be for the ratable benefit of the Holders of the Securities
of such series in respect of which such judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article
with respect to the Securities or the Guarantees of such series shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities of such series, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Securities or the Guarantees of such series for principal of (and
premium, if any) and interest, if any, on such Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium,
if any) and interest, if any, respectively; and
58
Third: The balance, if any, to the Company and the Guarantor,
as the case may be, or any other Person or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS
No Holder of any Security of any particular series shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given written
notice to the Trustee of such default and the continuance thereof;
(2) the Holders of at least 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of
that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of that series, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of that series.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL (AND PREMIUM, IF ANY) AND INTEREST, IF ANY
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right which is absolute and unconditional
to receive payment, as provided herein (including, if applicable, XIV) and in
such Security of the principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Security on their respective Stated Maturities
expressed in such Security (or, in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or
59
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Guarantor, the Trustee
and the Holders of Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and such
Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 3.6(e),
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any
Security of such series to exercise any right or remedy accruing upon any Event
of Default with respect to the Securities of such series shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 CONTROL BY HOLDERS
The Holders of a majority in principal amount of the
Outstanding Securities of any particular series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee with respect to the Securities of that series or exercising any
trust or power conferred on the Trustee with respect to such Securities,
provided, however, that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture and could not involve the Trustee in personal
liability or be unjustly prejudicial to the Holders of Outstanding Securities of
such series; and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 WAIVER OF PAST DEFAULTS
(a) Subject to Section 5.2, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any particular series may on
behalf of the Holders of all the Securities of that series waive any past
default hereunder with respect to that series and its consequences, except:
60
(1) a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of that series affected.
(b) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defences made by such party litigant; but the
provisions of this Section shall (subject to applicable laws) not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any particular series or to any suit instituted by any
Holder of any Security for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on any Security of such series on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date, as the case may be).
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS
Each of the Company and the Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16 JUDGMENT CURRENCY
If, for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company or the Guarantor hereunder or under any
Security or a Guarantee, it shall become necessary to convert into any other
currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security, then such conversion, unless otherwise ordered
by the Court, shall be made by the Currency Determination Agent at the
61
Market Exchange Rate as in effect on the date of entry of the judgment (the
"Judgment Date"). If pursuant to any such judgment, conversion shall be made on
a date (the "Substitute Date") other than the Judgment Date and there shall
occur a change between the Market Exchange Rate as in effect on the Judgment
Date and the Market Exchange Rate as in effect on the Substitute Date, the
Company or the Guarantor, as the case may be, agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Security or Guarantee. Any amount due from the Company
or the Guarantor under this Section 5.16 shall be due as a separate debt and is
not to be affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Security. In no event, however, shall
the Company or the Guarantor be required to pay more in the currency or currency
unit due hereunder or under such Security or Guarantee at the Market Exchange
Rate as in effect on the Judgment Date than the amount of currency or currency
unit stated to be due hereunder or under such Security or Guarantee so that in
any event the Company's or the Guarantor's obligations hereunder or under such
Security or Guarantee will be effectively maintained as obligations in such
currency or currency unit, and the Company or the Guarantor shall be entitled to
withhold (or be reimbursed for, as the case may be) any excess of the amount
actually realized upon any such conversion on the Substitute Date over the
amount due and payable on the Judgment Date.
ARTICLE VI
THE TRUSTEE
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES
(a) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(b) The Trustee in exercising its powers and discharging its duties
prescribed or conferred by this Indenture, shall:
(1) act honestly and in good faith with a view to the best
interests of the Holders of Securities issued hereunder; and
(2) exercise the care, diligence and skill of a reasonably
prudent person, acting in such capacity.
(c) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
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(d) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect
of Sections 6.1(a), 6.1(b) and 6.1(c);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in principal amount of
the Outstanding Securities of any particular series, determined as provided in
Section 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Securities of that series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2 NOTICE OF DEFAULTS
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any particular series, the Trustee shall give to
Holders of Securities of that series and may, notwithstanding that no default
may have occurred with respect to the Securities of any other series, give to
the Holders of Securities of such other series, in the manner and to the extent
provided in TIA Section 313(c), notice of such default if known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of that series, or in the deposit
of any sinking fund payment with respect to Securities of that series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee reasonably determines that the
withholding of such notice is in the best interests of the Holders of Securities
of that series and so informs the Company, in the manner set forth in Section
1.5; and provided, further, that in the case of any default of the character
specified in Section 5.1(4) with respect to Securities of that series no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of that series.
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Section 6.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of TIA Sections 315(a) through
315(d):
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series pursuant to this Indenture for
which it is acting as Trustee, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall have no duties or responsibilities with respect
to and shall have no liability for the actions taken or the failures to act of
any other trustees appointed hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES
The recitals contained herein (except the description of the
Trustee) and in the Securities (except the Trustee's certificates of
authentication thereof), shall be taken as the
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statements of each of the Company and the Guarantor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities of any
series. The Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Section 6.8, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be
segregated from other funds except as provided in Section 1.15 and except to the
extent required by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT
(a) Each of the Company and the Guarantor agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence or bad
faith; and
(3) to indemnify the Trustee and its agents, including any
Authenticating Agent, for, and to hold them harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.
(b) As security for the performance of the obligations of each of the
Company and the Guarantor under this Section the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on particular Securities.
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Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS
(a) The Trustee represents to each of the Company and the Guarantor
that at the time of execution and delivery hereof no material conflict of
interest exists between the Trustee's role hereunder and the Trustee's role in
any other capacity and agrees that in the event of a material conflict of
interest arising hereafter it will, within 90 days after becoming aware that a
material conflict of interest exists, either eliminate the same or resign its
trust hereunder.
(b) If, notwithstanding the foregoing, the Trustee has a material
conflict of interest, the validity and enforceability of this Indenture and of
the Securities of any series issued hereunder shall not be affected in any
manner whatsoever by reason only of the existence of such material conflict of
interest.
(c) If the Trustee contravenes this Section 6.8, the Company or the
Holders of at least 25% in aggregate principal amount of the Securities of any
series affected thereby may apply to a court of competent jurisdiction for an
order that the Trustee be replaced, and such court may make an order on such
terms as it thinks fit.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; DIFFERENT
TRUSTEES FOR DIFFERENT SERIES; ELIGIBILITY
For any series of Securities, there shall at all times be a
Trustee hereunder which shall be a corporation incorporated under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers and subject to supervision
or examination by United States federal or State authority and, if more than one
Person is appointed a Trustee hereunder for any series of Securities, such
second Trustee may be (i) a corporation organized and doing business under the
laws of Canada or a Province thereof, authorized under such laws to carry on the
business of a trust company, or (ii) a corporation or other Person organized and
doing business under the laws of any other government which is permitted to act
as Trustee pursuant to any rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by an authority of such government or a political
subdivision thereof substantially equivalent to the supervision or examination
applicable to an institution described in clause (i) above, in each case under
clauses (i) and (ii) having a combined capital and surplus of at least the
amount required under Trust Indenture Legislation. If such corporation publishes
reports of condition at least annually, pursuant to law or to requirements of
the supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. Neither the Company, the Guarantor nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
or the Guarantor shall serve as Trustee. A different Trustee may be appointed by
the Company for any series of Securities prior to the issuance of such
Securities. If the initial Trustee for any series of Securities is to be other
than The Bank of Nova Scotia Trust Company of New York, the Company, the
Guarantor and such Trustee shall, prior to the issuance of such Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Securities of such series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
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the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereunder specified in this
Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of such series for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to the Securities of any or all series, or (ii) subject to
TIA Section 315(e), any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition a court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee. The following
indentures shall be deemed to be specifically described herein for the purposes
of clause (i) of the first provisio contained in TIA Section 310(b): (a)
Indenture, dated as of December 11, 2001 among Abitibi-Consolidated Company of
Canada, Abitibi-Consolidated Inc. and The Bank of Nova Scotia Trust Company of
New York, as Trustee and (b) Indenture, dated as of July 26, 1999,
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among Abitibi-Consolidated Inc., Abitibi-Consolidated Finance L.P. and The Bank
of Nova Scotia Trust Company of New York, as Trustee.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee for the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee for the Securities of such series shall have been so appointed by the
Company or the Holders and shall have accepted appointment in the manner
required by Section 6.11, and if such Trustee is still incapable of acting, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(e) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner and to the extent provided in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of that series and
the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) Every successor Trustee appointed hereunder with respect to the
Securities of any series shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities,
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shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustee's co-trustees of
the same trust and each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Securities of any series
shall be qualified and eligible under this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided, however, that such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee or the
Authenticating Agent for such series then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee, or any successor to
such corporate trust business of the Trustee, or any successor Authenticating
Agent, as the case may be, may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee or
successor Authenticating Agent had itself authenticated such Securities.
SECTION 6.13 AUTHENTICATING AGENTS
(a) From time to time the Trustee may, subject to its sole discretion,
appoint one or more Authenticating Agents with respect to the Securities of any
series, with power to act in the name
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of the Trustee and subject to its discretion in the authentication and delivery
of Securities of such series in connection with transfers and exchanges under
Sections 3.4, Section 3.5, 3.6 and 11.7; as fully to all intents and purposes as
though such Authenticating Agent had been expressly authorized by those Sections
of this Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture and for purposes of the Canada Business Corporations
Act, the authentication and delivery of such Securities of such series by an
Authentication Agent for such Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Securities "by the Trustee" for
the Securities of such series. Any such Authenticating Agent shall at all times
be either (i) a corporation organized and doing business under the laws of the
United States or of any State thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus not less than that, if any, required on the part of an Authenticating
Agent in accordance with applicable law, and subject to supervision or
examination by United States or State authority, or (ii) a corporation or other
Person organized and doing business under the laws of Canada or any Province
thereof, or England, or Luxembourg, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus not less than that,
if any, required on the part of an Authenticating Agent in accordance with
applicable law, and subject to supervision or examination by governmental
authority of its jurisdiction of incorporation and organization. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
for any series of Securities shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
(b) Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the appointment of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent shall
cease to be eligible under this Section, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Company and shall give written notice of such appointment to all Holders of
Securities of such series in the manner set forth in Section 1.6. Any successor
Authenticating Agent, upon acceptance of his appointment hereunder, shall become
vested with all the rights, powers and duties of his predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
(c) The Company agrees to pay to any corporation which has been
appointed as Authenticating Agent for such series from time to time reasonable
compensation for such services.
(d) If an appointment with respect to one or more series of Securities
is made pursuant to this Section, the Securities or such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
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"This is one of the Securities of the series designated
therein described in the within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST COMPANY
OF NEW YORK, as Trustee
By:
--------------------------------
As "Authenticating Agent"
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS
SECTION 7.1 TRUSTEE TO FURNISH NAMES AND ADDRESSES OF HOLDERS
(a) A Holder may, upon payment to the Trustee of a reasonable fee,
require the Trustee to furnish within 10 days after receiving the affidavit or
statutory declaration referred to below, a list setting out (i) the name and
address of every Holder of Securities, (ii) the aggregate principal amount of
Securities owned by each such Holder, and (iii) the aggregate principal amount
of the Securities then outstanding, each as shown on the records of the Trustee
on the day that the affidavit or statutory declaration is delivered to the
Trustee. The affidavit or statutory declaration, as the case may be, shall
contain (i) the name and address of the Holder, (ii) where the applicant is a
corporation, its name and address for service, and (iii) a statement that the
list will not be used except in connection with an effort to influence the
voting of the Holders of Securities, an offer to acquire Securities, or any
other matter relating to the Securities or the affairs of the Company. Where the
Holder is a corporation, the affidavit or statutory declaration shall be made by
a director or officer of the corporation.
(b) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
nor any agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312 or the analogous provisions of other Trust
Indenture Legislation, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b) or the
analogous provisions of other Trust Indenture Legislation.
SECTION 7.2 COMMUNICATIONS TO HOLDERS
The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Legislation.
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SECTION 7.3 REPORTS BY THE GUARANTOR AND THE COMPANY,
IF APPLICABLE
(a) The Guarantor, and the Company if the Company is required
separately to file or furnish any information, documents and other reports with
the Commission, shall:
(1) file with the Trustee, within 15 days after the Guarantor
or the Company, as applicable, is required to file the same with or furnish the
same to the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Guarantor or the Company, as applicable, may be required to file with
or furnish to the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Guarantor and the Company, as applicable, with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations;
(3) Notwithstanding that the Guarantor (or the Company, as
applicable) may not be required to remain subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, Guarantor (and the Company, as applicable) shall continue to file
with or furnish to the Commission and provide the Trustee
(A) within 90 days after the end of each fiscal year,
annual reports on Form 20-F or 40-F as applicable (or any successor
form), containing the information required to be contained therein (or
required in such successor form); and
(B) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, reports on Form 6-K (or any
successor form), containing the information which, regardless of
applicable requirements shall, at a minimum, contain such information
required to be provided in quarterly reports under the laws of Canada
or any province thereof to security holders of a corporation with
securities listed on The Toronto Stock Exchange whether or not the
Guarantor or the Company has any of its securities so listed.
Each of such reports will be prepared in accordance with Canadian
disclosure requirements and generally accepted accounting principles,
provided, however, that the Guarantor and the Company shall not be so
obligated to file such reports with the Commission if the Commission
does not permit such filings; and
(4) Transmit to all Holders in the manner and to the extent
provided in TIA Section 313(c), within 15 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Guarantor or the Company, as applicable, pursuant to Section
7.3(a)(1) and 7.3(a)(2) as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS
(a) Neither the Company nor the Guarantor shall consolidate or
amalgamate with or merge into or enter into any statutory arrangement with any
other Person, or convey, transfer or lease all or substantially all of its
properties and assets to any Person, unless:
(1) the entity formed by or continuing from such consolidation
or amalgamation or into which the Company or the Guarantor, as the case may be,
is merged or with which it enters into such arrangement or the Person which
acquires by conveyance or transfer, or which leases all or substantially all of
the properties and assets of the Company or the Guarantor, as the case may be,
(i) shall be a Person organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia or Canada or any
province thereof, and (ii) (unless such assumption shall occur by operation of
law) shall, in the case of any such action involving the Company or the
Guarantor, as the case may be, expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest, if any (including all additional amounts, if any, payable pursuant
to Section 5.16 or 10.9) on, and any sinking fund payment in respect of, all the
Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed or the Guarantor's obligations under
the Guarantee and this Indenture, as the case may be;
(2) immediately before and after giving effect to such
transaction, no Event of Default with respect to any series of Securities issued
by the Company, and no event which, after notice or lapse of time, or both,
would become an Event of Default with respect to any series of Securities issued
by the Company, shall have happened and be continuing; and
(3) the Company or the Guarantor, as the case may be, or such
Person has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger,
arrangement, conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
(b) This Section shall apply to a consolidation, amalgamation, merger
or arrangement only if the Company or the Guarantor, as the case may be, is not
the surviving entity.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or amalgamation of the Company or the
Guarantor with or merger or arrangement of the Company or the Guarantor into
another corporation or partnership or any conveyance, transfer or lease of all
or substantially all the properties and assets of the Company or the Guarantor
to any Person in accordance with Section 8.1, the successor Person formed by
such consolidation or amalgamation or into which the Company or
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the Guarantor is merged or with which it enters into such arrangement or to
which such conveyance or transfer or with which such lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor herein and
thereafter, except in the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture, the Securities
and any Guarantees, as the case may be, PROVIDED, HOWEVER, that the Company or
the Guarantor may, by supplemental indenture pursuant to Section 9.1, agree that
from and after any conveyance or transfer of properties and assets of the
Company or the Guarantor, as the case may be, to an Affiliate thereof, the
Company or the Guarantor, as the case may, be shall not be relieved of any
obligations or covenants under this Indenture, the Securities and any
Guarantees, as the case may be, and the Company's or the Guarantor's obligations
or covenants under this Indenture, the Securities and any Guarantees shall
continue in full force and effect without novation, the Company or the Guarantor
remaining as a joint and several debtor hereunder and thereunder with such
Affiliate.
SECTION 8.3 SECURITIES TO BE SECURED IN CERTAIN EVENTS
If, upon any consolidation or amalgamation of the Company or
the Guarantor with or merger or arrangement of the Company or the Guarantor into
any other corporation or partnership, or upon any conveyance, lease or transfer
of all or substantially all of the properties and assets of the Company or the
Guarantor to any Person in accordance with Section 8.1, any properties or assets
of the Company or the Guarantor or any Subsidiary of the Company or the
Guarantor owned immediately prior thereto, would thereupon become subject to any
Lien, then, unless such Lien could be created pursuant to Section 10.6 without
equally and ratably securing the Securities with (or prior to) the indebtedness
which upon such consolidation, amalgamation, merger, arrangement, conveyance,
lease or transfer is to become secured by such Lien, the Company or the
Guarantor, simultaneously with or prior to such consolidation, amalgamation,
merger, arrangement, conveyance, lease or transfer, will cause such Securities
to be so secured; provided, however, that, for the purpose of providing such
equal and ratable security, the principal amount of Original Issue Discount
Securities and Indexed Securities shall mean that amount which would, at the
time of making such effective provision, be due and payable pursuant to Section
5.2 and the terms of such Original Issue Discount Securities and Indexed
Securities upon a declaration of acceleration of the Maturity thereof, and the
extent of such equal and ratable security shall be adjusted, to the extent
permitted by law, as and when said amount changes over time pursuant to the
terms of such Original Issue Discount Securities and Indexed Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders of Securities, the Company
and the Guarantor, when authorized by a Board Resolution, and the Trustee, at
any time and from time to
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time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation or
partnership to the Company or the Guarantor, and the assumption by any such
successor of the covenants of the Company or the Guarantor herein and in the
Securities and Guarantees contained; or
(2) to add to the covenants of the Company or the Guarantor,
for the benefit of the Holders of all or any particular series of Securities
(and, if such covenants are to be for the benefit of fewer than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series), to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or otherwise secure any series of the Securities
or the Guarantees or to surrender any right or power herein conferred upon the
Company or the Guarantor; or
(3) to add any additional Events of Default with respect to
any or all series of Securities (and, if any such Event of Default applies to
fewer than all series of Securities, stating each series to which such Event of
Default applies); or
(4) to provide (subject to applicable laws) for the issuance
of uncertificated Securities of any series in addition to or in place of any
certificated Securities and to make all appropriate changes for such purposes;
provided, however, that any such action shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided, however, that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities or the Guarantees pursuant to the
requirements of Section 8.3 or 10.6 or otherwise; or
(7) to establish the form or terms of Securities of any series
or Guarantees as permitted by Section 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Bank of Nova Scotia Trust Company of New
York as Trustee for a series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.9; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(10) to add to the conditions, limitations and restrictions on
the authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities or
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Guarantees, as herein set forth, other conditions, limitations and restrictions
thereafter to be observed; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 4.1, 14.2 and 14.3;
provided, however, that any such action shall not adversely affect the interests
of the Holders of Securities of such series or any other series of Securities in
any material respect; or
(12) to add to or change or eliminate any provisions of this
Indenture as shall be necessary to comply with Trust Indenture Legislation; or
(13) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, to
surrender any right or power herein conferred upon the Company or the Guarantor
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided, however, that such action shall not adversely
affect the interests of the Holders of Securities of any particular series in
any material respect; or
(14) to close this Indenture with respect to the issuance,
authentication and delivery of additional series of Securities.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
(a) The Company and the Guarantor, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of any series of Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in principal amount of the Outstanding Securities of each series of Securities
then Outstanding affected thereby, in each case by Act of said Holders of
Securities of each such series delivered to the Company and the Guarantor and
the Trustee; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of such series:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security of such series, or
reduce the principal amount thereof or the rate of interest thereon, if any, or
any premium payable upon the redemption thereof, or change any obligation of the
Company or the Guarantor to pay additional amounts pursuant to Section 10.9
(except as contemplated by Section 8.1(a)(1) and permitted by Section 9.1(1)) or
reduce the amount of the principal of an Original Issue Discount Security of
such series that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or the amount thereof provable in
bankruptcy pursuant to Section 5.4, or change the Place of Payment, or the
currency or currency unit in which any Security of such series or the interest
or premium thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 3.1 herein; or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of such series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture which
affect such series or of certain defaults applicable to such series hereunder
and their consequences) provided for in this Indenture; or
(3) modify in any manner adverse to the Holders of Securities
entitled to the benefit of Guarantees, the terms and conditions of the
Guarantees; or
(4) modify any of the provisions of this Section or Section
5.13 or 10.8, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security of such series affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder of a Security of such series with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and Section
10.8 or the deletion of this proviso, in accordance with the requirements of
Sections 6.9, 6.11(b), 9.1(8) and 9.1(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
(b) It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not (except to the extent required in the case of a supplemental indenture
entered into under Section 9.1(8) or 9.1(9)) be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, liabilities,
duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 9.5 CONFORMITY WITH TRUST INDENTURE LEGISLATION
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Legislation as then in
effect.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities of any particular series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, in its sole discretion, bear
a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company and the Guarantor shall so determine, new
Securities of any series and Guarantees endorsed thereon so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the Parent
to any such supplemental indenture may be prepared and executed (and endorsed,
in the case of the Guarantees) by the Company and the Guarantor and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7 NOTICE OF SUPPLEMENTAL INDENTURES
Promptly after the execution by the Company, the Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of Section
9.1, the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 1.6, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL (AND PREMIUM, IF ANY)
AND INTEREST, IF ANY
The Company covenants and agrees, for the benefit of the
Holders of each particular series of Securities issued by the Company, that it
will duly and punctually pay in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) the principal of (and premium, if any) and
interest, if any, on that series of Securities in accordance with the terms of
the Securities of such series.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY
(a) The Company will maintain in each Place of Payment for Securities
of each series an office or agency where Securities of that series may be
presented or surrendered for payment, and an office or agency where Securities
of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company with respect to the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency in respect of any series of Securities or
shall fail to furnish the Trustee with the address thereof,
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such presentations (to the extent permitted by law) and surrenders of Securities
of that series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the same
as its agent to receive such respective presentations, surrenders, notices and
demands.
(b) Intentionally deleted.
(c) The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Securities of
one or more series may be presented or surrendered for any or all of the
purposes specified above in this Section and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for such purpose. The Company will give prompt written
notice to the Trustee so affected of any such designation or rescission and of
any change in the location of any such office or agency.
(d) If and so long as the Securities of any series (i) are denominated
in a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
(a) If the Company or the Guarantor shall at any time act as Paying
Agent with respect to any particular series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest, if any, on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currency unit
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series and except
as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the
principal (and premium, if any) and interest, if any, so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any
particular series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Securities,
deposit with a Paying Agent for the Securities of such series a sum (in the
currency or currency unit described in the preceding paragraph (a)) sufficient
to pay the principal (and premium, if any) and interest, if any, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for any particular series
of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company or
the Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal of (or premium, if any) and interest, if any, on Securities
of that series; and
(3) at any time during the continuation of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
(e) Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company or
the Guarantor, in trust for the payment of the principal of (and premium, if
any) and interest, if any, on any Securities of any particular series and
remaining unclaimed for two years (or such shorter period of time as to permit
return of such funds to the Company or the Guarantor, as the case may be, under
the applicable escheat or abandoned or unclaimed property laws) after such
principal (and premium, if any) and interest, if any, has become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be paid to the Company or the Guarantor,
as the case may be, on Company Request, or (if then held by the Company or the
Guarantor) shall be discharged from such trusts; and the Holder of such Security
shall, thereafter, as an unsecured general creditor, look only to the Company or
the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
(or the Guarantor) as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment may, but need not, give written notice to the Holder of such Security
in the manner set forth in Section 1.6, or may, in its discretion, in the name
and at the expense of the Company or the Guarantor, cause to be published at
least once in a newspaper published in the English language, customarily on each
Business Day and of general circulation in Montreal, Quebec and in New York
City, New York notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will, unless
otherwise required by mandatory provisions of applicable escheat, or abandoned
or unclaimed property law, be repaid to the Company or the Guarantor, as the
case may be.
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SECTION 10.4 STATEMENTS AS TO COMPLIANCE
(a) Each of the Guarantor and the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, a written statement signed by
the principal executive officer, principal financial officer or principal
accounting officer of the Guarantor or the Company, as applicable, stating that,
to the best of his or her knowledge, each of the Guarantor and the Company is
(or is not) in compliance with all conditions and covenants under this
Indenture, and if the signer has obtained knowledge of any default by either of
the Guarantor or the Company in the performance, observance or fulfillment of
any such condition or covenant, specifying each such default and the nature
thereof.
(b) For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 10.5 EXISTENCE
Subject to Article VIII, each of the Company and the Guarantor
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises and to preserve and keep in good condition of repair and in working
order its properties and assets; provided, however, that neither the Company nor
the Guarantor shall be required to preserve any right or franchise or to
preserve and keep in good condition of repair and in working order any property
or asset if, in the judgment of the Company or the Guarantor, as the case may
be, the preservation and keeping thereof is no longer desirable in the conduct
of the business of the Company or the Guarantor, as the case may be, and the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6 LIMITATION ON LIENS
So long as any Securities are Outstanding, the Guarantor will
not, and will not permit any Subsidiary of the Guarantor to create, incur,
assume or otherwise have outstanding any Lien securing any indebtedness for
borrowed money or interest thereon (or any liability of the Guarantor or such
Subsidiary under any guarantee or endorsement or other instrument under which
the Guarantor or such Subsidiary is contingently liable, either directly or
indirectly, for borrowed money or interest thereon), other than Permitted Liens,
without also simultaneously or prior thereto securing, or causing such
Subsidiary to secure, indebtedness under the Indenture so that Securities are
secured equally and ratably with or prior to such other indebtedness or
liability, except that the Guarantor and its Subsidiaries may incur a Lien to
secure indebtedness for borrowed money or enter into a Sale and Leaseback
Transaction without securing the Securities if, after giving effect thereto, the
sum of (i) the principal amount of indebtedness for borrowed money secured by
Liens created, incurred or assumed after the date hereof and otherwise
prohibited by this Indenture and (ii) the Attributable Value of all Sale and
Leaseback Transactions entered into after the date hereof and otherwise
prohibited by this Indenture does not exceed 10% of the Consolidated Net
Tangible Assets of the Guarantor.
SECTION 10.7 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
So long as any Securities are outstanding, the Guarantor will
not, and will not permit any Subsidiary of the Guarantor to, enter into any Sale
and Leaseback Transaction unless
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(i) the Guarantor or such Subsidiary, as applicable, would be entitled to enter
into such Sale and Leaseback Transaction pursuant to the Section 10.6 above
without securing the Securities or (ii) the Guarantor or such Subsidiary, as
applicable, shall apply, within 360 days of the effective date of any such
arrangement, an amount equal to the Attributable Value in respect of the leases
relating to such Sale and Leaseback Transactions to the prepayment or retirement
of indebtedness which matures more than 12 months after the date of the creation
of the indebtedness. Notwithstanding the foregoing, in no event shall the
Company or the Guarantor be required to prepay or retire Securities of a series,
in the aggregate with respect to any and all such transactions, on or prior to
the fifth anniversary of the issue date of any series of Securities, in an
amount which exceeds the difference between (i) 25% of the original aggregate
principal amount of the series of Securities; and (ii) any and all earlier
mandatory payments made by the Company or the Guarantor, as applicable, on
account of the principal amount of the series of Securities. If the aggregate
net proceeds that the Company or the Guarantor would be otherwise required to
prepay or retire on or prior to such fifth anniversary would exceed such
difference (such excess being called the "Excess Proceeds"), then promptly after
such fifth anniversary, the Company or the Guarantor, as the case may be, shall
prepay or retire Securities of such series in an amount equal to the Excess
Proceeds.
SECTION 10.8 WAIVER OF CERTAIN COVENANTS
The Company or the Guarantor may omit in any particular
instance to comply with any covenant or condition set forth in Sections 8.3,
10.5, 10.6 and 10.7, and any other covenant not set forth herein and specified
pursuant to Section 3.1 to be applicable to the Securities of any series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Securities of each series of Securities
affected by the omission (which, in the case of a covenant not set forth herein
and specified pursuant to Section 3.1 to be applicable to the Securities of any
series, shall include only those series to which such covenant is so specified
to be applicable) shall, in each case by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Guarantor and the
duties of the Trustee with respect to any such covenant or condition shall
remain in full force and effect.
SECTION 10.9 PAYMENT OF ADDITIONAL AMOUNTS
(a) Unless otherwise specified pursuant to Section 3.1, the provisions
of this Section 10.9 shall be applicable to Securities of any series or the
related Guarantees.
(b) The Company or the Guarantor, as the case may be, will, subject to
the exceptions and limitations set forth below, pay to the Holder of any
Security or Guarantee who is a non-resident of Canada such additional amounts as
may be necessary so that every net payment on such Security or Guarantee, after
deduction or withholding by the Company or the Guarantor or any of its Paying
Agents for or on account of any present or future tax, assessment or other
governmental charge imposed by the Government of Canada or the government of any
political subdivision or taxing authority thereof or therein (hereinafter
"Taxes") upon or as a result of such payment, will not be less than the amount
provided in such Security or in such Guarantee to
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be then due and payable (and the Company or the Guarantor, as the case may be,
will remit the full amount of Taxes withheld to the relevant authority in
accordance with applicable laws). However, the Company or the Guarantor will not
be required to make any payment of additional amounts:
(1) to any Holder in respect of whom such Taxes are required
to be withheld or deducted as a result of such Holder not dealing at arm's
length (within the meaning of the Income Tax Act of Canada) with the Company or
the Guarantor, as the case may be, at the time of making the payment;
(2) to any Holder which is subject to such taxes by reason of
the Holder being a resident, domiciled in, or a national of, or engaged in
business or having a permanent establishment or otherwise having some connection
with Canada or any province or territory thereof otherwise than by the mere
holding of Securities or the receipt of payments thereunder;
(3) for or on account of any tax, assessment or other
governmental charge which would not have been so imposed but for the
presentation by the Holder of such Security or Guarantee for payment on a date
more than 10 days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever occurs later;
(4) for or on account of any estate, inheritance, gift, sales,
transfer, personal property tax or any similar tax, assessment or other
governmental charge;
(5) for or on account of any tax, assessment or other
governmental charge required to be withheld by any Paying Agent from any payment
to a Person in respect of any Security or Guarantee, if such payment can be made
to such Person without such withholding by at least one other Paying Agent, the
identity of which is provided to such Person;
(6) for or on account of any tax, assessment or other
governmental charge which is payable otherwise than by withholding from payments
in respect of such Security or Guarantee; or
(7) for any combination of items (1), (2), (3), (4), (5) and
(6);
nor will additional amounts be paid with respect to any payment on any such
Security or Guarantee to a Holder who is a fiduciary or partnership or other
than the sole beneficial owner of such payment to the extent such payment would
be required by the laws of Canada (or any political subdivision thereof) to be
included in the income for Canadian federal income tax purposes of a beneficiary
or settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to payment of the additional
amounts had such beneficiary, settlor, member or beneficial owner been the
Holder of such Security.
(c) Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (and premium, if any) and interest, if any, on any
Security or payment with respect to any Guarantee of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section to the extent
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that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those provisions
hereof where such express mention is not made.
(d) If the Securities of a series provide for the payment of additional
amounts as contemplated by Section 3.1(b)(29), at least 10 days prior to the
first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to maturity or in the
case of the Guarantees, the first day on which a payment of principal and any
premium is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) and interest, if any, if there has been any
change with respect to the matters set forth in the below mentioned Officers'
Certificate, the Company or the Guarantor, as the case may be, will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of (and premium,
if any) and interest, if any, on the Securities of that series or the Guarantees
shall be made to Holders of Securities of that series who are non-residents of
Canada without withholding for or on account of any tax, assessment or other
governmental charge referred to above or described in the Securities of that
series or the Guarantees. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or Guarantees and the
Company or the Guarantor, as the case may be, will pay to the Trustee or such
Paying Agent such additional amounts as may be required pursuant to the terms
applicable to such series or Guarantees. Each of the Company and the Guarantor
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
gross negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 10.9.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF THIS ARTICLE.
Redemption of Securities of any series (whether by operation
of a sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Securities of any
series issued by it shall be evidenced by or pursuant to a Board Resolution. In
case of any redemption at the election of the Company of less than all of the
Securities of any particular series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee) notify the Trustee by Company Request of such
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Redemption Date and of the principal amount of Securities of that series to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 11.3. In the case of any redemption of Securities of any series prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company (and the Guarantor,
as the case may be) shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.3 SELECTION OF SECURITIES TO BE REDEEMED
(a) If less than all the Securities are to be redeemed, the Company may
select the series to be redeemed, and if less than all of the Securities of any
series are to be redeemed, the particular Securities of that series to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of that series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 3.1.
(b) The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
(c) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4 NOTICE OF REDEMPTION
(a) Except as otherwise specified as contemplated in Section 3.1,
notice of redemption shall be given in the manner provided in Section 1.6 not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed.
(b) All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular
series are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
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(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) Intentionally deleted.
(8) Intentionally deleted.
(9) in the case of any Security to be redeemed in part only,
the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security, or Securities of authorized denominations for
the principal amount thereof remaining unredeemed.
(c) Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE
Prior to the opening of business on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent for such
Securities (or, if the Company or the Guarantor is acting as Paying Agent for
such Securities, segregate and hold in trust as provided in Section 10.3) an
amount of money in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series and except as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) sufficient to pay the principal amount of (and premium, if
any, thereon), and (except if the Redemption Date shall be an Interest Payment
Date) any accrued interest on, all the Securities which are to be redeemed on
that date.
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE
(a) Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currency unit in which the
Securities of such series are payable (except as otherwise provided pursuant to
Section 3.1 for the Securities of such series and except as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) and from and after such date (unless the Company
shall default in the payment of the Redemption Price) such Securities shall
cease to bear interest. Upon surrender of such Security for redemption in
accordance with said notice, such Security or specified portions thereof shall
be paid by the Company at the Redemption Price; provided, however, that unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
(b) Intentionally deleted.
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(c) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Security (or, in the case of Original Issue
Discount Securities, the Security's Yield to Maturity).
SECTION 11.7 SECURITIES REDEEMED IN PART
(a) Any Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company, the Guarantor or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Guarantor or the Trustee and the Security
Registrar for such Security duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, and having endorsed thereon a Guarantee executed
by the Guarantor, of any authorized denomination as requested by such Holder, of
the same series and having the same terms and provisions and in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 11.8 TAX REDEMPTION; SPECIAL TAX REDEMPTION
If specified pursuant to Section 3.1, Securities of any series
may be redeemed at the option of the Company, in whole but not in part, on not
more than 60 days' and not less than 30 days' notice, on any Redemption Date at
the Redemption Price, if the Company or the Guarantor, as the case may be,
determines that (i) as a result of any change in or amendment to the laws (or
any regulations or rulings promulgated thereunder) of Canada or of any political
subdivision or applicable Canadian taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change or amendment is announced or
becomes effective on or after a date specified in Section 3.1 with respect to
any Security of such series, the Company or the Guarantor has or will become
obligated to pay on the next succeeding Interest Payment Date, additional
amounts pursuant to Section 10.9 with respect to any Security or Guarantee of
such series or (ii) on or after a date specified in Section 3.1 with respect to
any Security or Guarantee of such series, any action has been taken by any
taxing authority of, or any decision has been rendered by a court of competent
jurisdiction in, Canada or any political subdivision or taxing authority thereof
or therein, including any of those actions specified in (i) above, whether or
not such action was taken or decision was rendered with respect to the Company
or the Guarantor, or any change, amendment, application or interpretation shall
be officially proposed, which, in any such case, in the Opinion of Counsel to
the Company or the Guarantor will result in a material probability that the
Company or the Guarantor will become obligated to pay, on the next succeeding
Interest Payment Date, additional amounts with respect to any Security or
Guarantee of such series, and (iii) in any such case specified in (i) or (ii)
above the Company or the Guarantor, as the case may be, in its business
judgment, determines that such obligation cannot be avoided by the use of
reasonable measures available to the Company or the Guarantor; PROVIDED,
however, that (x) no such notice of redemption may be given earlier than 90 or
later than 30 days prior to the earliest date on which the Company or the
Guarantor, as applicable, would be obligated to pay such additional
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amounts were a payment in respect of the Securities then due and (y) at the time
such notice of redemption is given, such obligation to pay such additional
amounts remains in effect.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF THIS ARTICLE
(a) Redemption of Securities through operation of a sinking fund as
permitted or required by any form of Security issued pursuant to this Indenture
shall be made in accordance with such form of Security and this Article;
provided, however, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form of
Security shall govern.
(b) The minimum amount of any sinking fund payment provided for by the
terms of Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Securities of any particular series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
particular series as provided for by the terms of Securities of that series.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES
The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption), and (ii) may apply as a
credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the principal amount thereof and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND
(a) Not less than 60 days prior to each sinking fund payment date for
any particular series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the
currency or currency unit in which the Securities of that series are payable
(except as otherwise specified pursuant to Section 3.1 for the Securities of
that series and except as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 12.2 and shall state the
basis
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for such credit and that such Securities have not previously been so credited
and will also deliver to the Trustee any Securities to be so delivered. The
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 11.6 and 11.7.
(b) Notwithstanding the foregoing, with respect to a sinking fund for
any series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any Paying Agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE XIII
REPAYMENT AT OPTION OF HOLDERS
SECTION 13.1 APPLICABILITY OF ARTICLE
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof, as permitted by any form of Security
issued pursuant to this Indenture, shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
SECTION 13.2 ELECTION TO REPAY; NOTICE TO THE COMPANY
(a) Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places or which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security not repaid, must be specified;
provided, however, that no such partial repayment shall
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reduce the portion of the principal amount of a Security not repaid to less than
the minimum authorized denomination for Securities of such series established
pursuant to Section 3.1. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
(b) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security, repaid or to be repaid only in part, to the portion
of the principal amount of such Securities which has been or is to be repaid.
SECTION 13.3 DEPOSIT OF REPAYMENT PRICE
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the Repayment Price.
Prior to the opening of business on any Repayment Date, the Company shall
deposit with the Trustee for the Securities to be repaid or with a Paying Agent
for such Securities (or, if the Company is acting as its own Paying Agent for
such Securities, segregate and hold in trust as provided in Section 10.3) an
amount of money in the currency or currency unit in which the Securities of such
series are payable (unless otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) sufficient to pay the principal (and premium, if any), and
(except if the Repayment Date shall be an Interest Payment Date) any accrued
interest on, all the Securities which are to be repaid on that date.
SECTION 13.4 SECURITIES PAYABLE ON REPAYMENT DATE
(a) If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Securities, the Securities
so to be repaid shall, on the Repayment Date, become due and payable at the
Repayment Price therein specified in the currency or currency unit in which the
Securities of such series are payable (except as otherwise provided pursuant to
Section 3.1 for the Securities of such series and except as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) and from and after such date (unless the Company
shall default in the payment of the Repayment Price) such Securities shall cease
to bear interest. Upon surrender of such Security for repayment in accordance
with said provisions, such Security or specified portions thereof shall be paid
by the Company at the Repayment Price; provided, however, that unless otherwise
specified as contemplated by Section 3.1, installments of interest on Securities
whose Stated Maturity is on or prior to the Repayment Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
(b) Intentionally deleted.
(c) If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the principal thereof (or premium, if any) shall, until
paid, bear interest from the
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Repayment Date at a rate per annum equal to the rate borne by the Security (or,
in the case of Original Issue Discount Securities, the Securities' Yield to
Maturity).
SECTION 13.5 SECURITIES REPAID IN PART
Any Security which is to be repaid only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee so
requires, due endorsement by or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such Security duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities,
and, if applicable, having endorsed thereon the Guarantee executed by the
Parent, of any authorized denomination as requested by such Holder, of the same
series and having the same terms and provisions and in an aggregate principal
amount equal to and in exchange for the unpaid portion of the principal of the
Security so surrendered.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1 OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, the provisions of this Article XIV shall apply to
each series of Securities, and the Company or the Guarantor may, at its option,
effect defeasance of the Securities of or within a series under Section 14.2, or
covenant defeasance of or within a series under Section 14.3 in accordance with
the terms of such Securities and in accordance with this Article.
SECTION 14.2 DEFEASANCE AND DISCHARGE
Upon the Company's or the Guarantor's exercise of the option
applicable to this Section with respect to any Securities of or within a series,
the Company and the Guarantor shall be deemed to have been discharged from their
obligations with respect to such Outstanding Securities on the date the
conditions set forth in Section 14.4 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and the Guarantees, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 14.5 and the other Sections of
this Indenture referred to in clauses (1), (2) and (3) below, and to have
satisfied all its other obligations under such Securities and the Guarantees,
and this Indenture insofar as such Securities and the Guarantees are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Outstanding Securities to
receive, solely from the trust fund described in Section 14.4 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities when such payments are due,
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(2) the Company's and the Guarantor's, as the case may be,
obligations with respect to such Securities under Sections 3.3,Section 3.5, 3.6,
10.2 and 10.3, and with respect to the payment of Additional Amounts, if any, on
such Securities or the related Guarantees as contemplated by Section 10.9,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and
(4) this Article XIV.
Subject to compliance with this Article XIV, the Company or the Guarantor, as
the case may be, may exercise its option under this Section 14.2 notwithstanding
the prior exercise of its option under Section 14.3 with respect to such
Securities and Guarantees.
SECTION 14.3 COVENANT DEFEASANCE
Upon the Company's or the Guarantor's exercise of the option
applicable to this Section with respect to any Securities of or within a series,
the Company and the Guarantor shall be released from its obligations under
Section 8.1, Section 8.3 and Section 10.95 through 10.7 and, if specified
pursuant to Section 3.1, its obligations under any other covenant, with respect
to such Outstanding Securities and any Guarantees on and after the date the
conditions set forth in Section 10.4 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and related Guarantees shall thereafter be
deemed not to be "Outstanding" for the purposes of any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and related Guarantees, the Company or the Guarantor, as the case may
be, may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 5.1(4) or Section 5.1(9) or otherwise, as the
case may be, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 14.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following shall be the conditions to application of either
Section 14.2 or Section 14.3 to any Outstanding Securities of or within a
series:
(a) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the provisions of
this Article XIV applicable to it, collectively for purposes of this Article
XIV, the "Trustee") as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) an amount (in the
currency or currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the Securities of
such series and except as provided in Sections 3.12(b), 3.12(d) and 3.12(e)), or
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(B) Government Obligations applicable to the Securities of such series
(determined on the basis of the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal (and premium,
if any) and interest, if any, on such Securities, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent chartered accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (i) the principal of (and premium,
if any) and interest, if any, on such Outstanding Securities on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and premium, if
any) or installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities on the
day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities; provided, however, that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities. Before
such a deposit, the Company or the Guarantor, as the case may be, may give to
the Trustee, in accordance with Section 11.3 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article XI
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to such Securities
shall have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1(5) and 5.1(6) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(c) Neither the Company nor the Guarantor is an "insolvent person"
within the meaning of the Bankruptcy and Insolvency Act (Canada) or the
Bankruptcy Code included in Title 11 of the United States Code, as amended, on
the date of such deposit or at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(d) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or the Guarantor, as the
case may be, is a party or by which it is bound.
(e) In the case of an election under Section 14.2, the Company or the
Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (x) the Company or the Guarantor, as
the case may be, has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this Indenture,
there has been a change in the applicable United States federal income tax law,
in either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities will not recognize gain or loss
for United States federal income tax purposes as a result of such defeasance and
will be subject to United States federal income tax on
93
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
(f) In the case of an election under Section 14.3, the Company or the
Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of
Counsel in the United States to the effect that the Holders of such Outstanding
Securities will not recognize gain or loss for United States federal income tax
purposes as a result of such covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not
occurred.
(g) The Parent has delivered to the Trustee an Opinion of Counsel in
Canada or a ruling from the Canada Customs and Revenue Agency to the effect that
the Holders of the Outstanding Securities will not recognize income, gain or
loss for Canadian federal or provincial income or other tax purposes as a result
of such defeasance or covenant defeasance and will be subject to Canadian
federal or provincial income and other tax on the same amounts, in the same
manner and at the same times as would have been the case had such defeasance or
covenant defeasance, as the case may be, not occurred (and for the purposes of
such opinion, such Canadian counsel shall assume that Holders of the Outstanding
Securities include Holders who are not resident in Canada).
(h) The Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate stating that the deposit made
by the Company or the Guarantor, as the case may be, pursuant to its election
under Section 14.2 or 14.3 was not made by the Company or the Guarantor, as the
case may be, with the intent of preferring the Holders over other creditors of
the Company or the Guarantor, as the case may be, or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or the
Guarantor or others.
(i) The Company or the Guarantor, as the case may be, has delivered to
the Trustee an Opinion of Counsel to the effect that such deposit shall not
cause the Trustee to be subject to the Investment Company Act of 1940, as
amended. Notwithstanding any other provisions of this Section, such defeasance
or covenant defeasance shall be effected in compliance with any additional or
substitute terms, conditions or limitations in connection therewith pursuant to
Section 3.1.
(j) The Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for or relating to either
the defeasance under Section 14.2 or the covenant defeasance under Section 14.3
(as the case may be) have been complied with.
SECTION 14.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS
(a) Subject to the provisions of Section 10.3(e), all money and
Government Obligations (or other property as may be provided pursuant to Section
3.1) (including the proceeds thereof) deposited with the Trustee pursuant to
Section 14.4 in respect of such Outstanding Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
94
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, if any, but
such money need not be segregated from other funds except to the extent required
by law.
(b) Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 14.4(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 14.4(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.12(d)
or 3.12(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 14.4(a) has been made, the indebtedness represented by such
Security shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
Market Exchange Rate for such currency or currency unit in effect on the third
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
(c) Either the Company or the Guarantor shall pay and both shall
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 14.4
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities.
(d) Anything in this Article XIV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 14.4 which, in the opinion of a
nationally recognized firm of independent chartered accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 14.6 REINSTATEMENT
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 14.5 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, or ordering the return of any amounts paid, then the Company's
and Guarantor's obligations under this Indenture and such Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
14.4, until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 14.5; provided, however, that if the
Company or the Guarantor makes any payment of principal of (or premium, if any)
or interest, if any, on any such Security following the reinstatement of its
obligations, the Company or the Guarantor shall be subrogated
95
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE XV
GUARANTEE OF SECURITIES
SECTION 15.1 GUARANTEE
The Guarantor hereby fully, unconditionally and irrevocably
guarantees to each Holder of a Security of each series issued by the Company
under this Indenture and authenticated and delivered by the Trustee and to the
Trustee on behalf of each such Holder, the due and punctual payment of the
principal of, premium, if any, and interest on such Security and the due and
punctual payment of the sinking fund or analogous payments referred to therein,
if any, when and as the same shall become due and payable, whether on the Stated
Maturity Date, by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and of this Indenture. In case of the failure of
the Company punctually to make any such payment of principal, premium, if any,
or interest or any such sinking fund or analogous payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether on the Stated Maturity Date or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor shall pay to the Holder such Additional Amounts
as may become payable in respect of any Guarantees under Section 10.9 of this
Indenture.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely guarantor, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or this Indenture,
any failure to enforce the provisions of such Security or this Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge of a guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security, or increase the interest rate thereon, or
increase any premium payable upon redemption thereof, or alter the Stated
Maturity Date thereof, or increase the principal amount of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration or the maturity thereof pursuant to Article V of this Indenture.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby or with respect
to any sinking fund or analogous payment required under such Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, premium, if any, and interest on
such Security.
The Guarantor shall be subrogated to all rights of the Holder
of such Security and the Trustee against the Company in respect of any amounts
paid to such Holder by the Guarantor
96
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of or based upon such right of subrogation until the principal of, premium,
if any, and interest on all Securities of the same series issued under this
Indenture shall have been paid in full.
Unless otherwise specified pursuant to Section 3.1 of this
Indenture, any Guarantee issued by the Guarantor shall be an unsecured,
unsubordinated obligation of the Guarantor, ranking PARI PASSU with all other
existing and future unsecured, unsubordinated indebtedness of the Guarantor, if
any.
SECTION 15.2 EXECUTION AND DELIVERY OF GUARANTEES
The Guarantees to be endorsed on the Securities of each series
issued under the Indenture shall include the terms of the guarantees set forth
in Section 15.1 and any other terms that may be set forth in the form
established pursuant to Section 2.4 with respect to such series. The Guarantor
hereby agrees to execute the Guarantees, in a form established pursuant to
Section 2.4, to be endorsed on each Security authenticated and delivered by the
Trustee. The Guarantees shall be executed on behalf of the Guarantor by its
Chairman of the Board or its President or one of its Vice Presidents. The
signature of any of these officers on the Guarantees may be manual or facsimile
and may be imprinted or otherwise reproduced on the Guarantees.
Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantee shall bind
the Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or did not hold such offices at the date
of such Securities.
The delivery of any Security by a Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
its Guarantee set forth in Section 15.1 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
SECTION 15.3 THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT
The provisions of Section 5.1 of this Indenture shall have
application upon the default of the Company to make a payment on account of
principal of, premium, if any, or interest on the Securities of any series,
notwithstanding the fulfillment by the Guarantor of its obligations under this
Article XV upon the occurrence of such default.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
97
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective seals, if any, to be
hereunto affixed, all as of the day and year first above written.
ABITIBI-CONSOLIDATED INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice-President,
Corporate Development and
Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice-President,
Corporate Affairs and
Secretary
ABITIBI-CONSOLIDATED COMPANY OF CANADA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
THE BANK OF NOVA SCOTIA TRUST COMPANY
OF NEW YORK, as Trustee
By:
----------------------------------
Name:
Title:
ANNEX A-1
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
TEMPORARY REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.5(b)(iii)
of the Indenture)
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ___, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ aggregate principal
amount of Securities which are evidenced by the Restricted Global Security
(CUSIP No. _________) and held with the Depositary in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Securities to a Person who will take delivery
thereof in the form of an equal aggregate principal amount of Securities
evidenced by the Temporary Regulation S Global Security (CUSIP No.
_____________), which amount, immediately after such transfer, is to be held
with the Depositary through Euroclear or Clearstream or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(a) the offer of the Securities was not made to a person in the
United States;
(b) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the transferee was outside
the United States,
(ii) in the case of Rule 903, the transaction was executed
in, on or through a physical trading floor of an
established foreign securities exchange that is
located outside the United States; or
ANNEX A-1
(iii) in the case of Rule 904, the transaction was executed
in, on or through the facilities of a designated
offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
(c) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(a) of Regulation S, as
applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depositary through Euroclear or Clearstream or both.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and the Initial Purchasers of the
Securities under the Purchase Agreement, dated June ___, 2004, with the Company
and the Parent relating to the Securities. Terms used in this certificate and
not otherwise defined in the Indenture have the meanings set forth in Regulation
S under the Securities Act.
Dated: [Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
registered owner must be stated.)
Annex ▇-▇-▇
▇▇▇▇▇ ▇-▇
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.5(b)(iv)
of the Indenture)
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June __, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
_________) and held with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. _____________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that:
(a) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities
Act"):
(i) the offer of the Securities was not made to a person
in the United States;
(ii) either:
(1) at the time the buy order was originated, the
transferee was outside the United States or
the Transferor and any person acting on its
behalf reasonably believed that the
transferee was outside the United States,
(2) in the case of Rule 903, the transaction was
executed in, on or through a physical trading
floor of an established foreign securities
exchange that is located outside the United
States; or
(3) in the case of Rule 904, the transaction was
executed in, on or through the facilities of
a designated offshore securities market and
neither the Transferor nor any person acting
on its behalf knows that the transaction was
prearranged with a buyer in the United
States;
A-2-1
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(a) of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act; or
(b) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Securities are being transferred in a
transaction permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and Initial Purchasers of the Securities
under the Purchase Agreement, dated _________, with the Company and the Parent
relating to the Securities. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under the
Securities Act.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
registered owner must be stated.)
A-2-2
ANNEX B
FORM OF TRANSFER CERTIFICATE --
TEMPORARY REGULATION S GLOBAL SECURITY OR
REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.5(b)(v)
of the Indenture)
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ____, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate principal
amount of Securities which are evidenced by the Temporary Regulation S Global
Security or the Regulation S Global Security (CUSIP No. _________) and held with
the Depositary through Euroclear or Clearstream or both in the name of [insert
name of transferor] (the "Transferor") during the Restricted Period. The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person that will take delivery thereof in the form of an equal
aggregate principal amount of Securities evidenced by the Restricted Global
Security (CUSIP No. _________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
B-1
ANNEX B
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and the Initial Purchasers of the
Securities under the Purchase Agreement, dated June ___, 2004 with the Company
and the Parent relating to the Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
registered owner must be stated.)
B-2
ANNEX C-1
FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S
GLOBAL SECURITY TO EUROCLEAR OR CLEARSTREAM
OWNER SECURITIES CERTIFICATION
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
System] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ____, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate principal
amount of Securities which are evidenced by the Temporary Regulation S Global
Security (CUSIP No. _________) and held with the Depositary through Euroclear or
Clearstream or both in the name of [insert name of holder] (the "Holder").
In respect of such Securities, the Holder does hereby certify that as
of the date hereof, the above-captioned Securities are beneficially owned by
non-U.S. Persons and are not held for purposes of resale directly or indirectly
to a U.S. Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
C-1-1
ANNEX C-1
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Parent and the Initial
Purchasers of the Securities under the Purchase Agreement, dated June ____, 2004
with the Company and the Parent relating to the Securities.
Date:______________, ____ (1)
---------------------------------------
[Name of Person Making Certification]
-----------------
(1) To be dated no earlier than 15 days prior to the transfer or exchange date
to which the certification relates.
C-1-2
ANNEX C-2
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE
EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING,
SOCIETE ANONYME
DEPOSITARY SECURITIES CERTIFICATION
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ___, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the aggregate principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, as of the date hereof,
$__________ aggregate principal amount of the above-captioned Securities are
beneficially owned by non-U.S. Persons and are not held for purposes of resale
directly or indirectly to a U.S. Person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Security excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
C-2-1
ANNEX C-2
We understand that this certification is required in connection with
certain securities laws of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Parent and the Initial
Purchasers of the Securities under the Purchase Agreement, dated June ____ ,
2004 with the Company and the Parent relating to the Securities.
Dated:
By:
---------------------------------------
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear System]
[or] [CLEARSTREAM BANKING, SOCIETE ANONYME]
C-2-2
ANNEX C-3
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
TRANSFEREE SECURITIES CERTIFICATION
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
System] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ___, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary
Regulation S Global Security, the undersigned certifies that it is not a U.S.
Person as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you in which we intend to acquire a beneficial interest in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and the Initial Purchasers of the
Securities under the Purchase Agreement, dated June _____, 2004 with the Company
and the Parent relating to the Securities.
Dated:
By:
---------------------------------
As, or as agent for, the beneficial
acquiror of the Securities to which
this certificate relates.
▇-▇-▇
▇▇▇▇▇ ▇-▇
FORM OF TRANSFER CERTIFICATE --
NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.5 (b)(vi)
of the Indenture)
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ____, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to $_____________ aggregate principal amount
of Securities held in definitive form (CUSIP No. _______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
Securities to a Person that will take delivery in the form of an equal aggregate
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. ___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
▇-▇-▇
▇▇▇▇▇ ▇-▇
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and the Initial Purchasers of the
Securities under the Purchase Agreement, dated June ___, 2004 with the Company
and the Parent relating to the Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE -- NON-GLOBAL
RESTRICTED SECURITY TO REGULATION S GLOBAL
SECURITY OR TEMPORARY REGULATION S
GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.5(b)(vi)
of the Indenture)
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
Re: [TITLE OF SERIES] (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of June ____, 2004
(the "Indenture"), among Abitibi-Consolidated Inc. (the "Parent"),
Abitibi-Consolidated Company of Canada (the "Company") and The Bank of Nova
Scotia Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This certificate relates to $____________ aggregate principal amount of
Securities held in definitive form (CUSIP No. _____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities to a Person that will take delivery in the form of
an equal aggregate principal amount of Securities evidenced by the Regulation S
Global Security or the Temporary Regulation S Global Security (CUSIP No.
___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with (A) Rule 903 or Rule 904 under the Securities Act of
1933, as amended (the "Act"), or (B) Rule 144 under the Act, if available, and
accordingly the Transferor does hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(i) the offer of the Securities was not made to a person
in the United States;
(ii) either:
(1) at the time the buy order was originated, the
transferee was outside the United States or
the Transferor and any person acting on its
behalf reasonably believed that the
transferee was outside the United States,
(2) in the case of Rule 903, the transaction was
executed in, on or through a physical trading
floor of an established foreign securities
exchange that is located outside the United
States; or
▇-▇-▇
▇▇▇▇▇ ▇-▇
(3) in the case of Rule 904, the transaction was
executed in, on or through the facilities of
a designated offshore securities market and
neither the Transferor nor any person acting
on its behalf knows that the transaction was
prearranged with a buyer in the United
States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Act; and
(v) if such transfer is to occur during the Restricted
Period, upon completion of the transaction, the
beneficial interest being transferred as described
above was held with the Depositary through
[Euroclear] [Clearstream]; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the
closing of the initial placement of the Securities
pursuant to the Purchase Agreement, dated June ____,
2004 between the Company and the representatives of
the several purchasers named therein; and
(ii) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Parent and the Initial Purchasers of the
Securities under the Purchase Agreement, dated June ____, 2004 with the Company
and the Parent relating to the Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
D-2-2
