Exhibit 7.1
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VASOGEN INC.,
as Issuer,
COMPUTERSHARE TRUST COMPANY, INC.,
as U.S. Trustee
and
COMPUTERSHARE TRUST COMPANY OF CANADA,
as Canadian Trustee
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Indenture
Dated as of
o
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VASOGEN INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of
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Trust Indenture Indenture Section
Act Section
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ss. 310(a) ............................... 6.08(a)
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(b) ............................... 6.09
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(c) ............................... Not Applicable
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ss. 311(a), (b) ............................... 6.05
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(c) ............................... Not Applicable
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ss. 312(a) ............................... 7.03
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(b) ............................... 7.01
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(c) ............................... 7.01
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ss. 313(a), (b), (c) ............................... 7.02
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(d) ............................... 7.03
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ss. 314(a) ............................... 7.03
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(a)(4) ............................... 10.04
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(b) ............................... Not Applicable
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(c)(1), (2) ............................... 1.02
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(d) ............................... Not Applicable
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(e) ............................... 1.02
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(f) ............................... Not Applicable
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ss. 315(a) ............................... 6.02
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(b) ............................... 6.01
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(c), (d) ............................... 6.02
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(e) ............................... 5.15
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ss. 316(a)(last
sentence) ............................... 1.01 ("Outstanding")
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(a)(1)(A) ............................... 5.12
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(a)(1)(B) ............................... 5.02, 5.13
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(a)(2) ............................... Not Applicable
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(b) ............................... 5.08
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(c) ............................... 1.04(e)
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ss. 317(a)(1) ............................... 5.03
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(a)(2) ............................... 5.04
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(b) ............................... 10.03
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ss. 318(a) ............................... 1.16
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................1
SECTION 1.01 Definitions....................................................................1
SECTION 1.02 Compliance Certificates and Opinions..........................................14
SECTION 1.03 Form of Documents Delivered to Trustees.......................................15
SECTION 1.04 Acts of Holders...............................................................15
SECTION 1.05 Notices, etc. to Trustees and Company.........................................18
SECTION 1.06 Notice to Holders; Waiver.....................................................18
SECTION 1.07 Effect of Headings and Table of Contents......................................19
SECTION 1.08 Successors and Assigns........................................................19
SECTION 1.09 Severability Clause...........................................................19
SECTION 1.10 Benefits of Indenture.........................................................20
SECTION 1.11 Governing Law.................................................................20
SECTION 1.12 Legal Holidays................................................................20
SECTION 1.13 Agent for Service; Submission to Jurisdiction; Waiver of Immunities...........20
SECTION 1.14 Conversion of Currency........................................................21
SECTION 1.15 Currency Equivalent...........................................................23
SECTION 1.16 Conflict with Trust Indenture Legislation.....................................23
ARTICLE TWO SECURITIES FORMS......................................................................23
SECTION 2.01 Forms Generally...............................................................23
SECTION 2.02 Form of Trustee's Certificate of Authentication...............................24
SECTION 2.03 Securities Issuable in Global Form............................................24
ARTICLE THREE THE SECURITIES......................................................................25
SECTION 3.01 Amount Unlimited; Issuable in Series..........................................25
SECTION 3.02 Denominations.................................................................30
SECTION 3.03 Execution, Authentication, Delivery and Dating................................30
SECTION 3.04 Temporary Securities..........................................................33
SECTION 3.05 Registration, Registration of Transfer and Exchange...........................35
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities..............................39
SECTION 3.07 Payment of Interest; Interest Rights Preserved; Optional
Interest Reset................................................................41
SECTION 3.08 Optional Extension of Stated Maturity.........................................43
SECTION 3.09 Persons Deemed Owners.........................................................44
SECTION 3.10 Cancellation..................................................................45
SECTION 3.11 Computation of Interest.......................................................45
i
SECTION 3.12 Currency and Manner of Payments in Respect of Securities......................46
SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent..................49
ARTICLE FOUR SATISFACTION AND DISCHARGE...........................................................50
SECTION 4.01 Satisfaction and Discharge of Indenture.......................................50
SECTION 4.02 Application of Trust Money....................................................52
ARTICLE FIVE REMEDIES.............................................................................52
SECTION 5.01 Events of Default.............................................................52
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment............................54
SECTION 5.03 Collection of Debt and Suits for Enforcement by Trustees......................55
SECTION 5.04 Trustees May File Proofs of Claim.............................................56
SECTION 5.05 Trustees May Enforce Claims Without Possession of Securities..................57
SECTION 5.06 Application of Money Collected................................................57
SECTION 5.07 Limitation on Suits...........................................................57
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.....58
SECTION 5.09 Restoration of Rights and Remedies............................................59
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.......................................................60
SECTION 5.14 Waiver of Stay or Extension Laws..............................................60
SECTION 5.15 Undertaking for Costs.........................................................60
ARTICLE SIX THE TRUSTEES..........................................................................61
SECTION 6.01 Notice of Defaults............................................................61
SECTION 6.02 Certain Duties and Responsibilities of Trustees...............................61
SECTION 6.03 Certain Rights of Trustees....................................................63
SECTION 6.04 Trustees Not Responsible for Recitals or Issuance of Securities...............64
SECTION 6.05 May Hold Securities...........................................................65
SECTION 6.06 Money Held in Trust...........................................................65
SECTION 6.07 Compensation and Reimbursement................................................65
SECTION 6.08 Corporate Trustees Required; Eligibility......................................66
SECTION 6.09 Resignation and Removal; Appointment of Successor.............................67
SECTION 6.10 Acceptance of Appointment by Successor........................................69
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business...................70
ii
SECTION 6.12 Appointment of Authenticating Agent...........................................70
SECTION 6.13 Joint Trustees................................................................72
SECTION 6.14 Other Rights of Trustees......................................................73
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................74
SECTION 7.01 Disclosure of Names and Addresses of Holders..................................74
SECTION 7.02 Reports by Trustees...........................................................75
SECTION 7.03 Reports by the Company........................................................75
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................77
SECTION 8.01 Company May Consolidate, etc., Only on Certain Terms..........................77
SECTION 8.02 Successor Person Substituted..................................................77
ARTICLE NINE SUPPLEMENTAL INDENTURES..............................................................78
SECTION 9.01 Supplemental Indentures Without Consent of Holders............................78
SECTION 9.02 Supplemental Indentures with Consent of Holders...............................79
SECTION 9.03 Execution of Supplemental Indentures..........................................81
SECTION 9.04 Effect of Supplemental Indentures.............................................81
SECTION 9.05 Conformity with Trust Indenture Legislation...................................81
SECTION 9.06 Reference in Securities to Supplemental Indentures............................81
SECTION 9.07 Notice of Supplemental Indentures.............................................81
ARTICLE TEN COVENANTS.............................................................................82
SECTION 10.01 Payment of Principal, Premium, if any, and Interest...........................82
SECTION 10.02 Maintenance of Office or Agency...............................................82
SECTION 10.03 Money for Securities Payments to Be Held in Trust.............................83
SECTION 10.04 Statement as to Compliance....................................................85
SECTION 10.05 Additional Amounts............................................................85
SECTION 10.06 Payment of Taxes and Other Claims.............................................87
SECTION 10.07 Corporate Existence...........................................................87
SECTION 10.08 Waiver of Certain Covenants...................................................87
ARTICLE ELEVEN REDEMPTION OF SECURITIES...........................................................88
SECTION 11.01 Applicability of Article......................................................88
SECTION 11.02 Election to Redeem; Notice to Trustees........................................88
iii
SECTION 11.03 Selection by Trustees of Securities to Be Redeemed............................88
SECTION 11.04 Notice of Redemption..........................................................89
SECTION 11.05 Deposit of Redemption Price...................................................90
SECTION 11.06 Securities Payable on Redemption Date.........................................90
SECTION 11.07 Securities Redeemed in Part...................................................91
SECTION 11.08 Tax Redemption................................................................91
ARTICLE TWELVE SINKING FUNDS......................................................................92
SECTION 12.01 Applicability of Article......................................................92
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.........................92
SECTION 12.03 Redemption of Securities for Sinking Fund.....................................93
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS...................................................94
SECTION 13.01 Applicability of Article......................................................94
SECTION 13.02 Repayment of Securities.......................................................94
SECTION 13.03 Exercise of Option............................................................94
SECTION 13.04 When Securities Presented for Repayment Become Due and Payable................95
SECTION 13.05 Securities Repaid in Part.....................................................96
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE...............................................96
SECTION 14.01 Company's Option to Effect Defeasance or Covenant Defeasance..................96
SECTION 14.02 Defeasance and Discharge......................................................96
SECTION 14.03 Covenant Defeasance...........................................................97
SECTION 14.04 Conditions to Defeasance or Covenant Defeasance...............................97
SECTION 14.05 Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions................................................100
SECTION 14.06 Reinstatement................................................................101
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES................................................101
SECTION 15.01 Purposes for Which Meetings May Be Called....................................101
SECTION 15.02 Call, Notice and Place of Meetings...........................................101
SECTION 15.03 Persons Entitled to Vote at Meetings.........................................102
SECTION 15.04 Quorum; Action...............................................................102
SECTION 15.05 Determination of Voting Rights; Conduct and Adjournment of Meetings..........103
SECTION 15.06 Counting Votes and Recording Action of Meetings..............................104
iv
INDENTURE, dated as of o, between VASOGEN INC., a corporation duly
continued and existing under the laws of Canada (herein called the "Company"),
having its principal office at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0, and Computershare Trust Company, Inc., a trust company duly
organized and existing under the laws of the State of Colorado, as U.S. trustee
(herein called the "U.S. Trustee"), and Computershare Trust Company of Canada, a
trust company duly organized and existing under the laws of Canada, as Canadian
trustee (the "Canadian Trustee" and, together with the U.S. Trustee, the
"Trustees").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), which may be convertible into or exchangeable for any securities
of any person (including the Company), to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of Trust Indenture Legislation
(as defined below) that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
2
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted in the
United States at the date of such computation;
(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;
(5) "or" is not exclusive;
(6) words implying any gender shall apply to all genders; and
(7) the words Subsection, Section and Article refer to the Subsections,
Sections and Articles, respectively, of this Indenture unless
otherwise noted.
Certain terms, used principally in Article Three, are defined in that
Article.
"accelerated indebtedness" has the meaning specified in Section 5.01.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Additional Amounts" has the meaning specified in Section 10.05.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by either Trustee
pursuant to Section 6.12 to act on behalf of such Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
3
"Base Currency" has the meaning specified in Section 1.14.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustees.
"Branch Register" has the meaning specified in Section 3.05.
"Branch Security Registrar" has the meaning specified in Section 3.05.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, any day other than Saturday, Sunday or any other day on which
commercial banking institutions in that Place of Payment or other location are
permitted or required by any applicable law, regulation or executive order to
close.
"calculation period" has the meaning specified in Section 3.11.
"CBCA" means the Canada Business Corporations Act, as amended.
"Canadian Securities Authorities" means the securities commissions or
similar authorities in Canada.
"Canadian Taxes" has the meaning specified in Section 10.05.
"Canadian Trustee" means the Person named as the "Canadian Trustee" in the
first paragraph of this Indenture until a successor Canadian Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Canadian Trustee" shall mean or include each Person who is then a
Canadian Trustee hereunder; provided, however, that if at any time there is more
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than one such Person, "Canadian Trustee" as used with respect to the Securities
of any series shall mean only the Canadian Trustee with respect to Securities of
that series.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents however designated in
the equity interest in such Person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire any equity
interest in such Person.
"Central Register" has the meaning specified in Section 3.05.
"Central Security Registrar" has the meaning specified in Section 3.05.
4
"Clearstream" means Clearstream Banking, societe anonyme, or its
successor.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, the President, the Chief Executive
Officer, the Chief Operating Officer or a Vice President, or if two or more
persons share such office any one of such persons, and by the Chief Financial
Officer, the Chief Accounting Officer, another Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, or
if two or more persons share such office any one of such persons, and delivered
to the Trustees.
"Component Currency" has the meaning specified in Section 3.12(h).
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the Euro or other currency unit) both by the government of the
country which issued such Currency and by a central bank or other public
institution of or within the international banking community for the settlement
of transactions, (ii) the Euro or (iii) any currency unit (or composite
currency) other than the Euro for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
U.S. Trustee or the Canadian Trustee, as applicable, at which at any particular
time its corporate trust business shall be administered, which office on the
date of execution of this Indenture of the U.S. Trustee is located at 000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxx X. Xxxx, Facsimile
No. (000) 000-0000, and of the Canadian Trustee is located at 000 Xxxxxxxxxx
Xxxxxx, 12th Floor, South Tower, Toronto, Ontario, M5J 2Y1, Attention: Manager,
Corporate Trust, Facsimile No. (000) 000-0000, except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the U.S. Trustee or the
Canadian Trustee, as applicable, designated in writing to the Company at which,
at any particular time, its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
5
"covenant defeasance" has the meaning specified in Section 14.03.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"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 3.07.
"defeasance" has the meaning specified in Section 14.02.
"Depositary " means with respect to the Securities of any series issuable
or issued in the form of one or more Registered Securities, the Person
designated as Depositary by the Company pursuant to Section 3.05 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 Registered
Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the 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).
"Election Date" has the meaning specified in Section 3.12(h).
"Euro" means the single currency of the participating member states from
time to time of the European Union described in legislation of the European
Counsel for the operation of a single unified European currency (whether known
as the Euro or otherwise).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
6
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 3.04.
"Exchange Rate Agent" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, a New York clearing house bank, designated pursuant to Section
3.01 or Section 3.13.
"Exchange Rate Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
3.02 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Exchanges" means the Nasdaq National Market and The Toronto Stock
Exchange and any other securities exchange or automated quotation system upon
which the Securities are or become listed or quoted.
"Excluded Holder" has the meaning specified in Section 10.05.
"Extension Notice" has the meaning specified in Section 3.08.
"Extension Period" has the meaning specified in Section 3.08.
"Final Maturity" has the meaning specified in Section 3.08.
"First Currency" has the meaning specified in Section 1.15.
"Foreign Currency" means any Currency other than Currency of the United
States.
"GAAP" means generally accepted accounting principles in Canada in effect
from time to time, unless the Person's most recent audited or quarterly
financial statements are not prepared in accordance with generally accepted
accounting principles in Canada, in which case "GAAP" shall mean generally
accepted accounting principles in the United States in effect from time to time.
"Government Obligations" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.01, 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
7
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed by such government, which, in either case, are full
faith and credit obligations of such government payable in such Currency and are
not callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest or principal of the Government Obligation evidenced by such depository
receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01; provided, however, that, if at any time more than
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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
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity at the rate prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.14.
8
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or xxxxx x Xxxx or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"mandatory sinking fund payment" has the meaning specified in Section
12.01.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 3.01, (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 3.01 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 New York City, Toronto, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 3.01, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, Toronto, London or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
Currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase such Currency in
order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Non-Recourse Debt" means indebtedness to finance the creation,
development, construction or acquisition of assets and any increases in or
extensions, renewals or refinancings of such indebtedness, provided that the
recourse of the lender thereof (including any agent, trustee, receiver or other
Person acting on behalf of such entity) in respect of such indebtedness is
limited in all circumstances to the assets created, developed, constructed or
acquired in respect of which such indebtedness has been
9
incurred and to the receivables, inventory, equipment, chattels payable,
contracts, intangibles and other assets, rights or collateral connected with the
assets created, developed, constructed or acquired and to which such lender has
recourse.
"Notice of Default" has the meaning specified in Section 5.01.
"Officers' Certificate" means a certificate, which shall comply with this
Indenture, signed by the Chairman of the Board of Directors, a Vice Chairman of
the Board of Directors, the President, the Chief Executive Officer, the Chief
Operating Officer or a Vice President, or if two or more persons share such
office any one of such persons, and by the Chief Financial Officer, the Chief
Accounting Officer, another Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, or if two or
more persons share such office any one of such persons, and delivered to the
Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section 3.07.
"optional sinking fund payment" has the meaning specified in Section
12.01.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Original Stated Maturity" has the meaning specified in Section 3.08.
"Other Currency" has the meaning specified in Section 1.15.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by a Trustee or delivered to
a Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in
the necessary amount has been theretofore deposited with a
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided
--------
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustees has been made;
10
(iii) Securities, except to the extent provided in Sections 14.02
and 14.03, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; and
(iv) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustees proof satisfactory to them that
such Securities are held by a protected purchaser (as defined
in Article 8 of the UCC) in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the
-------- -------
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.02, (ii) the principal amount
of any Security denominated in a Foreign Currency that may be
counted in making such determination or calculation and that shall
be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officers'
Certificate delivered to the Trustees, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in
making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section
3.01, and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustees shall be protected
in making such calculation or in
11
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustees know
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 Trustees the
pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, body corporate, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, each place where the principal of (and premium, if any) and
interest, if any, on such Securities are payable in the United States and Canada
as specified as contemplated by Sections 3.01 and 10.02.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"rate(s) of exchange" has the meaning specified in Section 1.14.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture, plus accrued and unpaid interest thereon to the Redemption Date.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.01.
12
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 3.07.
"Responsible Officer", when used with respect to a Trustee, means any vice
president, secretary, any assistant secretary, treasurer, any assistant
treasurer, cashier, any assistant cashier, any senior trust officer, any trust
officer or assistant trust officer, the controller or any assistant controller
within the corporate trust administration division of a Trustee or any other
officer of a Trustee customarily performing functions similar to those performed
by any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
-------- -------
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Shareholders' Equity" means the aggregate amount of shareholders' equity
of the Company as shown on the most recent audited annual consolidated balance
sheet of the Company and computed in accordance with GAAP.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustees
pursuant to Section 3.07.
"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 or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 3.08.
"Subsidiary" means, any corporation of which at the time of determination
the Company, directly and/or indirectly through one or more Subsidiaries, owns
more than 50% of the shares of Voting Stock or partnership, joint venture,
limited liability company, association, company or business trust interests.
13
"Subsequent Interest Period" has the meaning specified in Section 3.07.
"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 Indenture was
executed, except as provided in Section 9.05.
"Trust Indenture Legislation" means, at any time, the provisions of (i)
the CBCA and the regulations thereunder as amended or re-enacted from time to
time, but only to the extent applicable, (ii) the provisions of any other
applicable statute of Canada or any province thereof and the regulations
thereunder as amended or re-enacted from time to time, but only to the extent
applicable, or (iii) the Trust Indenture Act 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 or the Company or the Trustees.
"Trustee" or "Trustees" means the U.S. Trustee and the Canadian Trustee.
If a Canadian Trustee is not appointed under this Indenture, or resigns or is
removed and, pursuant to Section 6.09, the Company is not required to appoint a
successor Trustee to the Canadian Trustee, "Trustee", "Trustees" and any
reference to "either Trustee", "both of the Trustees" or such similar references
shall mean the Person named as the U.S. Trustee or any successor thereto
appointed pursuant to the applicable provisions of this Indenture. Except to the
extent otherwise indicated, "Trustees" shall refer to the Canadian Trustee (if
appointed and still serving) and the U.S. Trustee, both jointly and
individually.
"UCC" means the New York uniform commercial code in effect from time to
time.
"U.S. Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"U.S. Trustee" means the Person named as the "U.S. Trustee" in the first
paragraph of this Indenture until a successor U.S. Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Trustee" shall mean or include each Person who is then a U.S. Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, "U.S. Trustee" as used with respect to the Securities of any series
shall mean only the U.S. Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 3.01, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, an estate the
income of which is subject to United States
14
federal income taxation regardless of its source, or a trust if (A) it is
subject to the primary supervision of a court within the United States and one
or more United States persons have the authority to control all substantial
decisions of the trust or (B) it has a valid election in effect under applicable
Treasury Regulations to be treated as a United States person.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President", when used with respect to the Company or the Trustees,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holder thereof (whether
at all times or at the time that such class of Capital Stock has voting power by
reason of the happening of any contingency) to vote in the election of members
of the board of directors or comparable body of such Person.
"Writing" has the meaning specified in Section 6.13.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustees to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustees an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and, if requested by the Trustee, an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 10.04)
shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
15
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustees.
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 may certify or give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, a
certificate of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which
such certificate or opinion may be based are erroneous. Any certificate or
opinion of any independent firm of public accountants filed with the Trustees
shall contain a statement that such firm is independent.
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 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced
by one or more
16
instruments of substantially similar tenor signed by such Holders in
person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such
series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing,
at any meeting of Holders of Securities of such series duly called
and held in accordance with the provisions of Article Fifteen, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustees and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustees and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustees deem
sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed
by the Trustees to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or
17
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustees to be
satisfactory. The Trustees and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustees by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by any Person,
and the date of holding the same, may also be proved in any other
manner that the Trustees deem sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Legislation, 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 that no such
--------
authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
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SECTION 1.05 Notices, etc. to Trustees and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the U.S. Trustee, by the Canadian Trustee, any Holder or by the
Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the U.S. Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department,
Facsimile No. (000) 000-0000, or
(2) the Canadian Trustee, by the U.S. Trustee, any Holder or by the
Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Canadian Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Department, Facsimile No. (000) 000-0000, or
(3) the Company by either Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the
Company , Attention: Vice President, Corporate & Legal Affairs,
Facsimile No: (000) 000-0000 or such other officer or facsimile
number as the Company may designate on written notice to the
Trustees, addressed to it at the address of its principal office
specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustees by the
Company.
SECTION 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustees, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice
of any event to Holders of Registered Securities when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory
19
to the Trustees shall be deemed to be sufficient giving of such notice for every
purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustees shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustees, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07 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 1.08 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Trustees shall bind their successors and assigns, whether so expressed or not.
SECTION 1.09 Severability Clause.
In case any provision in this Indenture or in any Security or coupon shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
20
SECTION 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture. Subject to
Section 1.16, at all times in relation to this Indenture and any action to be
taken hereunder, the Company and the Trustees each shall observe and comply with
Trust Indenture Legislation and the Company, the Trustees and each Holder of a
Security shall be entitled to the benefits of Trust Indenture Legislation.
SECTION 1.11 Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
Each Trustee and the Company agrees to comply with all provisions of Trust
Indenture Legislation applicable to or binding upon it in connection with this
Indenture and any action to be taken hereunder.
SECTION 1.12 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment or other location contemplated hereunder,
then (notwithstanding any other provision of this Indenture or of any Security
or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment or other location contemplated hereunder on such date,
but may be made on the next succeeding Business Day at such Place of Payment or
other location contemplated hereunder with the same force and effect as if made
on the Interest Payment Date or Redemption Date or sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.
SECTION 1.13 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has irrevocably designated and appointed CT Corporation
System, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to the Securities or this Indenture that may be instituted in any
federal or New York state court located in The Borough of Manhattan, The City of
New York, or brought by the Trustees (whether in their individual capacity or in
their capacity as Trustees hereunder), (ii) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit or proceeding,
21
and (iii) agrees that service of process upon CT Corporation System and written
notice of said service to the Company (mailed or delivered to the Company,
attention: Vice President, Corporate & Legal Affairs, at its principal office at
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, as specified in
Section 1.05 hereof), shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect so
long as this Indenture shall be in full force and effect.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any such action, suit or proceeding in any such court or any
appellate court with respect thereto. The Company irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action, suit or proceeding in any such court.
SECTION 1.14 Conversion of Currency.
(a) The Company covenants and agrees that the following provisions
shall apply to conversion of currency in the case of the Securities
and this Indenture:
(i) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it
becomes necessary to convert into a currency (the
"Judgment Currency") an amount due or contingently due
in any other currency under the Securities of any series
and this Indenture (the "Base Currency"), then the
conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which a
final judgment is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise
determine).
(ii) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the
judgment referred to in (i) above is given or an order
of enforcement is made, as the case may be (or such
other date as a court shall determine), and the date of
receipt of the amount due, the Company shall pay such
additional (or, as
22
the case may be, such lesser) amount, if any, as may be
necessary so that the amount paid in the Judgment
Currency when converted at the rate of exchange
prevailing on the date of receipt will produce the
amount in the Base Currency originally due.
(b) In the event of the winding- up of the Company at any time while
any amount or damages owing under the Securities and this Indenture,
or any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders and
the Trustees harmless against any deficiency arising or resulting
from any variation in rates of exchange between (1) the date as of
which the equivalent of the amount in the Base Currency due or
contingently due under the Securities and this Indenture (other than
under this Subsection (b)) is calculated for the purposes of such
winding-up and (2) the final date for the filing of proofs of claim
in such winding-up. For the purpose of this Subsection (b) the final
date for the filing of proofs of claim in the winding- up of the
Company shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being
the latest practicable date as at which liabilities of the Company
may be ascertained for such winding- up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this
Section shall constitute separate and independent obligations of the
Company from its other obligations under the Securities and this
Indenture, shall give rise to separate and independent causes of
action against the Company, shall apply irrespective of any waiver
or extension granted by any Holder or the Trustees or either of them
from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of
claim in the winding up of the Company for a liquidated sum in
respect of amounts due hereunder (other than under Subsection (b)
above) or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustees, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or its
liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be increased or reduced by any
variation in rates of exchange occurring between the said final date
and the date of any liquidating distribution.
The term "rate(s) of exchange" shall mean the rate of exchange quoted by a
Canadian chartered bank as may be designated in writing by the Company to the
Trustees from time to time, at its central foreign exchange desk in its main
office in Toronto at 12:00 noon (Toronto time) on the relevant date for
purchases of the Base Currency with the Judgment Currency and includes any
premiums and costs of exchange payable. The
23
Trustees shall have no duty or liability with respect to monitoring or enforcing
this Section.
SECTION 1.15 Currency Equivalent.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "First
Currency"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "Other Currency") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) on the date of determination.
SECTION 1.16 Conflict with Trust Indenture Legislation.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with any mandatory requirement of Trust Indenture
Legislation, such mandatory requirement shall control. If and to the extent that
any provision hereof modifies or excludes any provision of Trust Indenture
Legislation that may be so modified or excluded, the latter provision shall be
deemed to apply hereof as so modified or to be excluded, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 2.01 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustees at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached.
24
Either Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 2.02 Form of Trustee's Certificate of Authentication.
Subject to Section 6.12, either Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed by either Trustee)
Dated:
--------------------
Computershare Trust Company, Inc., as U.S. Trustee, certifies that this is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Computershare Trust Company, Inc.,
as U.S. Trustee
By:
--------------------------------
Authorized Officer
Dated:
--------------------
Computershare Trust Company of Canada, as Canadian Trustee, certifies that
this is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Computershare Trust Company of Canada,
as Canadian Trustee
By:
--------------------------------
Authorized Officer
SECTION 2.03 Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified and contemplated by Section 3.01, then, notwithstanding clause (10) of
Section 3.01, any
25
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustees 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 Trustees pursuant to Section 3.03 or
Section 3.04. Subject to the provisions of Section 3.03 and, if applicable,
Section 3.04, the Trustees 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. If a Company Order
pursuant to Section 3.03 or Section 3.04 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 3.03 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 Trustees the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any)
and interest, if any, on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in
the preceding paragraph, the Company, the Trustees and any agent of the Company
and the Trustees shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
26
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 3.03, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (19) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.04, 3.05, 3.06,
9.06, 11.07 or 13.05);
(3) the extent and manner, if any, to which payment on or in respect of
the Securities of the series will be senior or will be subordinated
to the prior payment of other liabilities and obligations of the
Company, and whether the payment of principal, premium, if any, and
interest, if any, will be guaranteed by any other Person and the
nature and priority of any security;
(4) the percentage or percentages of principal amount at which the
Securities of the series will be issued;
(5) the date or dates, or the method by which such date or dates will be
determined or extended, on which the Securities of the series may be
issued and on which the principal of the Securities of the series is
payable;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue,
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date or dates shall be determined, and the basis upon
which interest shall be calculated if other than on the basis of a
360-day year of 12 30-day months;
(7) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of the
series may be surrendered for registration of transfer, where
Securities of the series may be surrendered
27
for exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable and, if different than the location specified in Section
1.05, the place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served;
(8) the period or periods within which, the price or prices at which,
the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which
any Bearer Securities of the series shall be issuable;
(11) if other than the Trustees, the identity of each Security Registrar
and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02 or the method by which such portion shall be
determined;
(13) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the Securities
of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of
any of the provisions of Section 3.12;
(14) whether the amount of payments of principal of (or premium, if any)
or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(15) whether the principal of (or premium, if any) or interest, if any,
on the Securities of the series are to be payable, at the election
of the Company or
28
a Holder thereof, in a Currency other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms
and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in
which such Securities are denominated or stated to be payable and
the Currency in which such Securities are to be so payable, in each
case in accordance with, in addition to or in lieu of any of the
provisions of Section 3.12;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) the applicability, if any, of Sections 14.02 and/or 14.03 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen
that shall be applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may
be specified;
(19) any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of
or additions to Section 10.08) of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(20) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section
3.05, whether Registered Securities of the series may be exchanged
for Bearer Securities of the series (if permitted by applicable laws
and regulations), whether Bearer Securities of the series may be
exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such
exchanges may be made and, if Securities of the series are to be
issuable in global form, the identity of any initial depository
therefor;
(21) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
29
(22) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto
as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner
provided in Section 3.04;
(23) 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;
(24) 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;
(25) whether, under what circumstances and the Currency in which the
Company will pay Additional Amounts as contemplated by Section 10.05
on the Securities of the series to any Holder (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(26) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will
be so convertible or exchangeable;
(27) the applicability, if any, of Sections 10.05 and 11.08 to such
Securities;
(28) provisions as to modification, amendment or variation of any rights
or terms attaching to the Securities; and
(29) any other terms, conditions, rights and preferences (or limitations
on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the requirements of Trust Indenture
Legislation or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 3.03) and
set forth in such Officers' Certificate
30
or in any such indenture supplemental hereto. Not all Securities of any one
series need be issued at the same time, and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be delivered to
the Trustees at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 3.01. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by any one of the President, Chief Executive Officer,
Chief Operating Officer, Chief Financial Officer, Chief Accounting Officer, a
Vice President, Treasurer, an Assistant Treasurer, Secretary or an Assistant
Secretary of the Company, or if two or more persons share such office any one of
such persons. The signature of any of these officers on the Securities or
coupons may be the manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupon appertaining thereto, executed by the Company to the Trustees for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustees, or either of them, in accordance
with such Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
-------- -------
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
-------- -------
any series of Securities pursuant to Section 3.01, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A-1
31
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 3.04, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 3.06, the
Trustees shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustees
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustees shall be entitled to receive, and (subject to Trust Indenture
Legislation) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustees for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustees, or either of them, in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, 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 any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and
the
32
execution and delivery of the supplemental indentures, if any, by
the Trustees will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or continuance, or such
other constating documents than in effect, if any, or by-laws of the
Company or result in any violation of any of the terms or provisions
of any law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 3.01 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustees shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustees' own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustees.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 3.01.
No Security or coupon shall entitle a Holder to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the U.S. Trustee or by the Canadian Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustees for cancellation as
provided in Section 3.10 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never entitle a Holder to the
benefits of this Indenture.
33
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustees, or either of them,
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and either Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and provided
--------
further that a definitive Bearer Security shall be delivered in exchange for a
-------
temporary Bearer Security only in compliance with the conditions set forth in
Section 3.03. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary") or the Depositary, as applicable, for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustees
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustees, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge and either Trustee shall authenticate and deliver, in exchange
for each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor
34
as the portion of such temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.01, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; provided, however, that, unless
-------- -------
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to
Section 3.01); and provided further that definitive Bearer Securities shall be
-------- -------
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 3.03.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear
and Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear and Clearstream, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.01), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and Clearstream, the Trustees, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices of
Euroclear and Clearstream. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and Clearstream on such
Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustees
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section
3.01), for credit without further interest thereon on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to
35
Euroclear and Clearstream, as the case may be, a certificate dated no earlier
than 15 days prior to the Interest Payment Date occurring prior to such Exchange
Date in the form set forth in Exhibit A-1 to this Indenture (or in such other
form as may be established pursuant to Section 3.01). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 3.03 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustees immediately prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 10.03.
SECTION 3.05 Registration, Registration of Transfer and Exchange.
So long as required by Trust Indenture Legislation, the Company shall keep
at its principal office in the Province of Ontario, or shall cause to be kept at
the office of a trust corporation registered under the Loan and Trust
Corporations Act (Ontario), a securities register (the "Central Register") of
Holders of each series of Securities maintained in compliance with the laws of
the Province of Ontario. The Company will cause the particulars of each such
issue, exchange or transfer of Securities to be recorded in the Central
Register. The Company shall initially be the central security registrar (the
"Central Security Registrar") for the purpose of registering Securities and
transfers and exchanges of Securities in the Central Register as provided
herein; provided, however, the Company may appoint from time to time one or more
successor Central Security Registrars and may from time to time rescind any such
appointment. If no longer required by Trust Indenture Legislation, the Company
may appoint a Person other than the Company or a trust corporation registered
under the Loan and Trust Corporations Act (Ontario) as the Central Securities
Registrar.
The Company shall also cause to be maintained a branch register (a "Branch
Register") or Branch Registers of Holders of Securities in accordance with
Section 10.02 in the same manner and containing the same information with
respect to each entry contained therein as contained in the Central Register. A
copy of every entry in a Branch Register shall, promptly after the entry is
made, be transmitted to the Central Security Registrar. If there is a conflict
between the information contained in the Central Register and the information
contained in the Branch Register, the information contained in the Central
Register shall prevail. The Central Register together with each Branch Register
are collectively referred to herein as the "Security Register". At all
reasonable times, the Security Register shall be open to inspection by the
Trustees. The U.S. Trustee is hereby initially appointed as branch security
registrar (the "Branch Security Registrar") for the
36
purpose of maintaining a Branch Register at its Corporate Trust Office;
provided, however, the Company may appoint from time to time one or more
-------- -------
successor or additional Branch Security Registrars and may from time to time
rescind any such appointment. The Central Security Registrar together with each
Branch Security Registrar are collectively referred to herein as the "Security
Registrar".
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and either Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and either Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 3.01, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 3.03) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 3.01, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustees if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
-------- -------
10.02, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed
37
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and either Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 3.01
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustees definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustees, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and
either Trustee shall authenticate and deliver, in exchange for each portion of
such permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such permanent global Security to be exchanged which,
unless the Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by Section 3.01,
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning at
-------- -------
the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided,
--------
further, that no Bearer Security delivered in exchange for a portion of a
-------
permanent global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of
38
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
Transfers of global Securities shall be limited to transfers in whole, but
not in part, to the Depositary, its successors or their respective nominees. If
at any time the Depositary of a series notifies the Company that it is
unwilling, unable or no longer qualifies to continue as Depositary of such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor depositary with
respect to the Securities for such series. If a successor to the Depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company's
election pursuant to Section 3.01 shall no longer be effective with respect to
the Securities for such series and the Company will execute, and either Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive, registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the global
Security or Securities representing such series in exchange for such global
Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and either Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive,
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
Interests of a beneficial owner in global Securities may also be
transferred or exchanged for definitive Securities if, after the occurrence of
an Event of Default with respect to such Securities, and while such Event of
Default is continuing, such owner notifies the Trustees in writing that it
wishes to receive a Security in definitive, registered form and provides to the
Trustees evidence reasonably satisfactory to the Trustees of its ownership
interest in such Securities. In such event the Company will execute, and either
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive, registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the global
Security or Securities representing such series in exchange for such global
Security or Securities.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the U.S. Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security,
39
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the U.S. Trustee in writing. The U.S. Trustee shall deliver such
Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series in definitive form 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 11.03 or 12.03 and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, (C) if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security in definitive form so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be simultaneously
--------
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security in definitive form which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to either Trustee, the Company shall execute
and either Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, or, in case any such
mutilated Security or coupon has become or is
40
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, pay such Security or coupon. If there
shall be delivered to the Company and to either Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustees that such Security or coupon has been acquired by a
protected purchaser (as defined in Article 8 of the UCC), the Company shall
execute and upon Company Order either Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security for which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
-------- -------
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 10.02, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustees) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and the Holders of
such Security shall be entitled to all the benefits of this Indenture equally
and proportionately with the Holders of any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
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 or coupons.
41
SECTION 3.07 Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest, if any, on any
Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 10.02; provided,
--------
however, that each installment of interest, if any, on any
-------
Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.09, to
the address of such Person as it appears on the Security Register or
(ii) transfer to an account located in the United States maintained
by the payee of a Holder of $2.0 million or more in aggregate
principal amount of such Securities.
Unless otherwise provided as contemplated by Section 3.01 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account located outside the United
States maintained by the payee.
Unless otherwise provided as contemplated by Section 3.01, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Clearstream with respect to
that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustees in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security
of such series and the date of the proposed
42
payment, and at the same time the Company shall deposit with either
Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if
applicable, 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
Trustees for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustees shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt
by the Trustees of the notice of the proposed payment. The Trustees
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided in Section
1.06, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose name the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and, upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustees of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustees.
(b) The provisions of this Subsection may be made applicable to any
series of Securities pursuant to Section 3.01 (with such
modifications, additions or substitutions as may be specified
pursuant to such Section 3.01). 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 Trustees of
such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustees shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest
43
rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate
(or such new spread or spread multiplier, if applicable) and (ii)
the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is
no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
the spread or spread multiplier, 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 Trustees to
transmit, in the manner provided for in Section 1.06, 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
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustees 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
Trustees, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 3.05, 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 3.08 Optional Extension of Stated Maturity.
The provisions of this Section 3.08 may be made applicable to any series
of Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods
44
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 Trustees 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 Trustees shall transmit, in the manner provided for in Section 1.06,
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
Trustees' transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustees to transmit, in
the manner provided for in Section 1.06, notice of such higher interest rate to
the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
If the Company extends the Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must
follow the procedures set forth in Article Thirteen for repayment at the option
of Holders, except that the period for delivery or notification to the Trustees
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
Trustees revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.09 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustees and any agent of the Company or the Trustees
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.05 and 3.07)
interest, if any, on such Security and for all other purposes whatsoever (other
than the payment of Additional Amounts, if any), whether or not such Security be
overdue, and none of the Company, the Trustees or any agent of the Company or
the Trustees shall be affected by notice to the contrary.
45
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustees and any agent of the Company or the
Trustees may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustees or any agent of the Company or the Trustees shall be
affected by notice to the contrary.
None of the Company, the Trustees, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustees, or any agent of the
Company or the Trustees, 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 and coupons surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange or for credit
against any current or future sinking fund payment shall, if surrendered to any
Person other than a Trustee, be delivered to a Trustee. All Securities and
coupons so delivered to either Trustee shall be promptly cancelled by it. The
Company may at any time deliver to either Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to either Trustee
(or to any other Person for delivery to such Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly cancelled by such
Trustee. If the Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to a Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by a Trustee shall be disposed of by such Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 3.11 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 with respect
to any Securities, interest, if any, on the Securities of each series shall be
computed on the basis
46
of a 360-day year of twelve 30-day months. For the purposes of disclosure under
the Interest Act (Canada), the yearly rate of interest to which interest
calculated under a Security for any period in any calendar year (the
"calculation period") is equivalent, is the rate payable under a Security in
respect of the calculation period multiplied by a fraction the numerator of
which is the actual number of days in such calendar year and the denominator of
which is the actual number of days in the calculation period.
SECTION 3.12 Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in
paragraph (b) below, and with respect to Bearer Securities of any
series, except as provided in paragraph (d) below, payment of the
principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section may be
modified or superseded with respect to any Securities pursuant to
Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive payments
of principal of (or premium, if any) or interest, if any, on such
Registered Securities in any of the Currencies which may be
designated for such election by delivering to the Trustees a written
election with signature guarantees and in the applicable form
established pursuant to Section 3.01, 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, such election will remain in effect for such Holder
or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustees (but any such
change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no
such change of election may be made with respect to payments to be
made on any Registered Security of such series with respect to which
an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or
with respect to which a notice of redemption has been given by the
Company or a notice of option to elect repayment has been sent by
such Holder or such transferee). Any Holder of any such Registered
Security who shall not have delivered any such election to the
Trustees not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in Section 3.12(a). The
Trustees shall notify the Exchange Rate Agent as soon as practicable
after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written
election.
47
(c) Unless otherwise specified pursuant to Section 3.01, if the
election referred to in paragraph (b) above has been provided for
pursuant to Section 3.01, then, unless otherwise specified pursuant
to Section 3.01, not later than the fourth Business Day after the
Election Date for each payment date for Registered Securities of any
series, the Exchange Rate Agent will deliver to the Company a
written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any,
on the Registered Securities to be paid on such payment date,
specifying the amounts in such Currency so payable in respect of the
Registered Securities as to which the Holders of Registered
Securities of such series shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to
Section 3.01 and if at least one Holder has made such election,
then, unless otherwise specified pursuant to Section 3.01, on the
second Business Day preceding such payment date the Company will
deliver to the Trustees for such series of Registered Securities an
Exchange Rate Officers' Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 3.01, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business Day
(the "Valuation Date") immediately preceding each payment date, and
such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency
in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b)
above, then, with respect to each date for the payment of principal
of (and premium, if any) and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency occurring
after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for
use on each such payment date. Unless otherwise specified pursuant
to Section 3.01, the Dollar amount to be paid by the Company to the
Trustees and by the Trustees or any Paying Agent to the Holders of
such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, 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 Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the
Holder of a Registered Security denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph
(b) above, and a
48
Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would
have been made in the absence of such election; and if a Conversion
Event occurs with respect to the Currency in which payment would
have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below 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 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the Euro.
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, including, but not limited to, the Euro, 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, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the date of
such replacement equal to the Dollar Equivalent value of the Specified Amount of
such former Component Currency at the Market Exchange Rate immediately before
such division 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, including, but not limited to, the Euro, a
Conversion Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any
49
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 Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (15) of Section 3.01 by which the
written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, 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 Trustees and all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustees of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustees and to the Exchange Rate
Agent (and the Trustees will promptly thereafter give notice in the manner
provided for in Section 1.06 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the Euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustees and to the Exchange Rate Agent (and the Trustees will
promptly thereafter give notice in the manner provided for in Section 1.06 to
the affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent and
shall not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the Exchange Rate
Agent.
SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, 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, at
least one Exchange Rate Agent. The Company will cause
50
the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to
Section 3.01 for the purpose of determining the applicable rate of
exchange and, if applicable, for the purpose of converting the
issued Currency into the applicable payment Currency for the payment
of principal (and premium, if any) and interest, if any, pursuant to
Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustees.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
the Exchange Rate Agent for any cause with respect to the Securities
of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Exchange Rate Agent
or Exchange Rate Agents with respect to the Securities of that or
those series (it being understood that any such successor Exchange
Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified
pursuant to Section 3.01, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date
and that are initially denominated and/or payable in the same
Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto and
any right to receive Additional Amounts as contemplated by Section 10.05) and
the Trustees, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not
51
required or has been waived as provided in Section 3.05, (ii)
Securities and coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.06, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 11.06, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with either Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 10.03) have
been delivered to either Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
either 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 Trustees for the giving of notice of
redemption by the Trustees in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with either Trustee as trust funds in trust
for such purpose an amount in the Currency in which the Securities of such
series are payable, sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to such Trustee for cancellation, for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any, to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustees an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustees under Section 6.07, the obligations
of the Trustees to any Authenticating Agent under Section 6.12 and, if money
shall have been deposited with the Trustees pursuant to subclause (b) of clause
(1) of this Section, the obligations of the Trustees under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
52
SECTION 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustees pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustees 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 Trustees; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 5.01 Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including Additional
Amounts) due on any Security of that series, or any related coupon,
when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal (or premium, if any) in
respect of any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund or analogous payment when
due by the terms of any Security of that series and Article Twelve;
or
(4) default in the performance, or breach, of any of the covenants
contained in Article Eight of this Indenture and the continuance of
such default or breach for a period of 15 days; or
(5) default in the performance, or breach, of any covenant or agreement
of the Company in this Indenture which affects or is applicable to
the Securities of that series (other than a covenant or agreement, a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), 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 Trustees or to
the Company and the Trustees by the Holders of at least 25% in
principal amount of all Outstanding Securities of that series 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
53
(6) if an event of default (as defined in any indenture or instrument
under which the Company or any Subsidiary has at the time of this
Indenture or shall thereafter have outstanding any indebtedness)
shall have occurred and be continuing, or the Company or any
Subsidiary shall have failed to pay principal amounts with respect
to such indebtedness at maturity and such event of default or
failure to pay shall have resulted in indebtedness under such
indentures or instruments being declared due, payable or otherwise
being accelerated, in either event so that an amount in excess of
the greater of $5,000,000 and 2% of Shareholders' Equity shall be or
become due, payable and accelerated upon such declaration or prior
to the date on which the same would otherwise have become due,
payable and accelerated (the "accelerated indebtedness"), and such
acceleration shall not be rescinded or annulled, or such event of
default or failure to pay under such indenture or instrument shall
not be remedied or cured, whether by payment or otherwise, or waived
by the holders of such accelerated indebtedness, then
(a) if the accelerated indebtedness shall be as a result of an event
of default which is not related to the failure to pay principal or
interest on the terms, at the times, and on the conditions set out
in any such indenture or instrument, it shall not be considered an
Event of Default for purposes of this Indenture until 30 days after
such indebtedness has been accelerated, or
(b) if the accelerated indebtedness shall occur as a result of such
failure to pay principal or interest or as a result of an event of
default which is related to the failure to pay principal or interest
on the terms, at the times, and on the conditions set out in any
such indenture or instrument, then (i) if such accelerated
indebtedness is, by its terms, Non-Recourse Debt to the Company or a
Subsidiary, it shall not be considered an Event of Default for
purposes of this Indenture; or (ii) if such accelerated indebtedness
is recourse to the Company or a Subsidiary, any requirement in
connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any
further condition, event or act under such other indenture or
instrument in connection with such failure to pay or event of
default shall be applicable together with an additional seven days
before being considered an Event of Default for purposes of this
Indenture; or
(7) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under or
subject to the Bankruptcy and Insolvency Act (Canada), the
Companies' Creditors Arrangement Act (Canada), the U.S. Federal
Bankruptcy Code or any other federal, provincial, state or foreign
bankruptcy, insolvency or analogous laws, or the issuance of a
sequestration order or the
54
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or in
receipt of any substantial part of the property of the Company, and
any such decree, order or appointment continues unstayed and in
effect for a period of 90 consecutive days; or
(8) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under or subject to the Bankruptcy and Insolvency Act (Canada), the
Companies' Creditors Arrangement Act (Canada), the U.S. Federal
Bankruptcy Code or any other federal, provincial, state or foreign
bankruptcy, insolvency or analogous laws or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property,
or the making by it of a general assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due or the taking by it of
corporate action in furtherance of any of the aforesaid purposes; or
(9) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4), (5), (6) or
(9) of Section 5.01 with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case, either Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, may declare the 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 that series) of all of the Securities of that series and all interest
thereon to be due and payable immediately, by a notice in writing to the Company
(and to the Trustees if given by Holders), and upon any such declaration such
principal amount (or specified portion thereof) shall become immediately due and
payable. If an Event of Default specified in Section 5.01(7) or 5.01(8) occurs
and is continuing, then the principal amount of all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustees or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by either Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustees, may rescind and annul such declaration and its consequences if
55
(1) the Company has paid or deposited with either Trustee a sum
sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 3.01 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 (or of all series, as the case may be) and any related
coupons,
(b) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal (and premium, if
any) at the rate or rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is legally
enforceable, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustees hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustees, their agents and counsel; and
(2) all Events of Default with respect to Securities of that series (or
of all series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on
Securities of that series (or of all series, as the case may be)
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03 Collection of Debt and Suits for Enforcement by Trustees.
The Company covenants that if
(1) default is made in the payment of any installment of interest on any
Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
then the Company will, upon demand of either Trustee, pay to the U.S. Trustee
for the benefit of the Holders of such Securities and coupons, the whole amount
then due and payable on such Securities and coupons for principal (and premium,
if any) and interest, if any, and interest on any overdue principal (and
premium, if any) and on any overdue
56
interest, at the rate or rates prescribed therefor in such Securities, 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 Trustees, their agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, each
of the Trustees, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, either Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as such 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 5.04 Trustees May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, each Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether either Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount
of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series,
and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of such
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
57
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to such Trustee and, in the event that such
Trustee shall consent to the making of such payments directly to the Holders, to
pay to such Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of each Trustee, its agents and counsel,
and any other amounts due to such Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustees to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustees to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05 Trustees May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustees without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by a 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 such Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 5.06 Application of Money Collected.
Any money collected by a Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustees and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustees under Section 6.07;
-----
Second: to the payment of the amounts then due and unpaid for principal of
------
(and premium, if any) and interest, if any, on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons entitled thereto.
-----
SECTION 5.07 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
58
(1) such Holder has previously given written notice to the Trustees of a
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4), (5), (6) or (9) of
Section 5.01, or, in the case of any Event of Default described in
clause (7) or (8) of Section 5.01, the Holders of not less than 25%
in principal amount of all Outstanding Securities, shall have made
written request to the Trustees to institute proceedings in respect
of such Event of Default in their own names as Trustees hereunder;
(3) such Holder or Holders have offered to the Trustees reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustees for 60 days after their receipt of such notice, request
and offer of indemnity have failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustees during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in
clause (1), (2), (3), (4), (5), (6) or (9) of Section 5.01, or, in
the case of any Event of Default described in clause (7) or (8) of
Section 5.01, by the Holders of a majority or more in principal
amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4), (5), (6) or (9) of Section 5.01, or of
Holders of all Securities in the case of any Event of Default described in
clause (7) or (8) of Section 5.01, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in clause (1), (2), (3), (4), (5), (6) or (9) of
Section 5.01, or of Holders of all Securities in the case of any Event of
Default described in clause (7) or (8) of Section 5.01.
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Fourteen) and in
such Security, of the principal of (and premium, if any) and (subject to Section
3.07) interest, if any, on, such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or
59
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 5.09 Restoration of Rights and Remedies.
If either Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustees and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustees and the 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 or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustees or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustees or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustees or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustees or by the Holders, as
the case may be.
SECTION 5.12 Control by Holders.
With respect to the Securities of any series, the Holders of not less than
a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees, relating to or arising under clause (1), (2),
(3), (4), (5), (6) or (9) of Section 5.01, and, with respect to all Securities,
the Holders of not less than a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustees, or
exercising any trust or power conferred on the Trustees, not relating to or
arising under clause (1), (2), (3), (4), (5), (6) or (9) of Section 5.01,
provided that in each case
60
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustees may take any other action deemed proper by the Trustees
which is not inconsistent with such direction, and
(3) the Trustees need not take any action which might involve them in
personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2), (3), (4), (5), (6) or (9) of Section 5.01 (or, in
the case of a default described in clause (7) or (8) of Section 5.01, the
Holders of not less than a majority in principal amount of all Outstanding
Securities may waive any such past default), and its consequences, except a
default
(1) in respect of the payment of the principal of (or premium, if any)
or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustees, but will suffer and permit the execution
of every such power as though no such law had been enacted.
SECTION 5.15 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against either Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of
61
such suit, and may assess costs against any such party litigant, in the manner
and to the extent provided in Trust Indenture Legislation; provided, however,
-------- -------
that neither this Section nor the provisions of Section 315(e) of the Trust
Indenture Act shall apply to any suit instituted by either Trustee or by any
Holder or group of Holders holding more than 10% in principal amount of all
Outstanding Securities or by any Holder of any Security on any suit for the
enforcement of the right to receive the principal of and interest (including any
Additional Amounts) on any such Securities.
ARTICLE SIX
THE TRUSTEES
SECTION 6.01 Notice of Defaults.
Each Trustee shall promptly give the other Trustee notice of any Default
or Event of Default known to it. Within a reasonable time, but no more than the
earlier of 90 days after the occurrence of or 30 days after either Trustee
becomes aware of any Default hereunder with respect to the Securities of any
series, one or both of the Trustees shall transmit in the manner and to the
extent provided in Trust Indenture Legislation, notice of such Default hereunder
known to either Trustee, unless such Default shall have been cured or waived
(and, in the case where such Default shall have been cured, the Trustees shall
notify the Holders in writing of such cure in writing within a reasonable time,
but not exceeding 30 days, after the Trustees have become aware that the Default
has been cured); provided, however, that, except in the case of a Default in the
-------- -------
payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustees 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 each
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series and any related coupons and
so advises the Company in writing; and provided further that in the case of any
-------- -------
Default of the character specified in Section 5.01(5) with respect to Securities
of such series, no such notice to Holders shall be given until at least 10 days
after the occurrence thereof.
SECTION 6.02 Certain Duties and Responsibilities of Trustees.
(a) The Trustees, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred,
shall undertake to perform with respect to the Securities of any
series such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read into
this Indenture against the Trustees.
(b) In all instances, in the exercise of the powers, rights, duties
and obligations prescribed or conferred by the terms of this
Indenture, each Trustee shall act honestly and in good faith with a
view to the best interests of the Holders and exercise that degree
of care, diligence and skill that a reasonably prudent trustee in
respect of indentures for the
62
purpose of issuing corporate debt obligations would exercise in
comparable circumstances.
(c) No provision of this Indenture shall be construed to relieve
each Trustee from liability for its own actions or failure to act in
accordance with Subsection 6.02(b), except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of each Trustee with
respect to the Securities of any series shall be
determined solely by the express provisions of
this Indenture, and the Trustees shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Indenture, and no implied covenants or
obligations shall be read into this Indenture
against the Trustees; and
(B) in the absence of bad faith on the part of either
Trustee, such Trustee may conclusively rely, as to
the truth of the statements and the correctness of
the opinions expressed therein, upon any
certificates or opinions furnished to the Trustees
and conforming to the requirements of this
Indenture and Trust Indenture Legislation; but in
the case of any such certificates or opinions that
by any provision hereof are specifically required
to be furnished to the Trustees, the Trustees
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture;
(ii) the Trustees shall not be liable for any error of
judgment made in good faith by a Responsible Officer of
such Trustee, unless it shall be proved that the Trustee
failed to act in accordance with Subsection 6.02(b) in
ascertaining the pertinent facts;
(iii) the Trustees shall not be liable with respect to any
action taken or omitted to be taken by them in good
faith in accordance with the direction of the Holders of
not less than a majority in principal amount of the
Securities of any series at the time Outstanding
relating to the time, method and place of conducting any
proceeding for any remedy
63
available to the Trustees, or exercising any trust or
power conferred upon the Trustees under this Indenture;
(iv) none of the provisions contained in this Indenture shall
require either Trustee to expend or risk their own funds
or otherwise incur personal or any financial liability
in the performance of any of their duties or in the
exercise of any of their rights or powers, if there is
reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to
them under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to
them; and
(v) whether or not therein expressly so provided, except to
the extent expressly provided herein to the contrary,
every provision of this Indenture relating to the
conduct or effecting the liability or affording
protection to the Trustees shall be subject to the
provisions of this Section.
SECTION 6.03 Certain Rights of Trustees.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustees 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, note, other evidence of indebtedness or other paper or
document believed by them to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustees shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, each Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustees 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 them hereunder in good faith and in reliance
thereon;
(5) the Trustees 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
64
the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered
to the Trustees reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by them in
compliance with such request or direction;
(6) the Trustees shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustees, in their discretion, may
make such further inquiry or investigation into such facts or
matters as they may see fit, and, if the Trustees shall determine to
make such further inquiry or investigation, they shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) in an Event of Default, the Trustees' powers shall not be infringed
upon so long as they act in accordance with Subsection 6.02(b);
(8) the Trustees 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 Trustees shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by them hereunder; and
(9) the Trustees shall not be liable for any action taken, suffered or
omitted by them in good faith and believed by them to be authorized
or within the discretion or rights or powers conferred upon them by
this Indenture.
SECTION 6.04 Trustees Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for a
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustees make no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustees represent that they are duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform their obligations hereunder and that the statements made by the U.S.
Trustee in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. Nothing herein
contained will impose on either Trustee any obligation to see to, or to require
evidence of, the registration or filing (or renewal thereof) of this Indenture
or any supplemental indenture. The Trustees shall not be bound to give notice to
any person of the execution hereof.
65
SECTION 6.05 May Hold Securities.
The Trustees, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustees, in their
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company, including, without limitation, as a creditor of the Company, with
the same rights they would have if they were not Trustees, Authenticating Agent,
Paying Agent, Security Registrar or such other agent. A Trustee that has
resigned or was removed shall remain subject to TIA Section 311(a) to the extent
provided therein.
SECTION 6.06 Money Held in Trust.
Money held by the Trustees in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustees shall be under no
liability for interest on any money received by them hereunder except as
otherwise agreed with the Company.
SECTION 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them 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
Trustees upon their request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of their
agents and counsel), except any such expense, disbursement or
advance as may be attributable to their negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold them harmless against,
any loss, liability or expense incurred without negligence or bad
faith on their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including reasonable attorneys' fees and other reasonable 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.
The obligations of the Company under this Section to compensate the
Trustees, to pay or reimburse the Trustees for expenses, disbursements and
advances and to indemnify and hold harmless the Trustees shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustees shall have a claim
66
prior to the Securities upon all property and funds held or collected by the
Trustees as such, except funds held in trust for the payment of principal of (or
premium, if any) or interest, if any, on particular Securities or any coupons.
When the Trustees incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(7) or (8), the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.08 Corporate Trustees Required; Eligibility.
(1) There shall be at all times a U.S. Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and, together
with its immediate parent, shall have a combined capital and surplus
of at least $50,000,000 and have its Corporate Trust Office or an
agency in The City of New York to the extent there is such an
institution eligible and willing to serve. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of U.S. federal, state, territorial or District
of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If
at any time the U.S. Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified
in this Article.
(2) For so long as required by Trust Indenture Legislation, there shall
be a Canadian Trustee under this Indenture. The Canadian Trustee
shall at all times be a resident or authorized to do business in the
Province of Ontario and any other province in Canada where Holders
may be resident from time to time. The Canadian Trustee represents
and warrants that no material conflict of interest exists in the
Canadian Trustee's role as a fiduciary hereunder and agrees that in
the event of a material conflict of interest arising hereafter it
will, within 30 days after ascertaining that it has such material
conflict of interest, either eliminate the same or resign its trust
hereunder. If any such material conflict of interests exists or
hereafter shall exist, the validity and enforceability of this
Indenture shall not be affected in any manner whatsoever by reason
thereof.
(3) [intentionally omitted]
(4) The Trustees will not be required to give any bond or security in
respect of the execution of the trusts and powers set out in this
Indenture or otherwise in respect of the premises.
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(5) Neither Trustee nor any Affiliate of either Trustee shall be
appointed a receiver or receiver and manager or liquidator of all or
any part of the assets or undertaking of the Company.
SECTION 6.09 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of either 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 6.10.
(2) Either Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee
required by Section 6.10 shall not have been delivered to such
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.
(3) Either Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to such Trustee and to the Company.
(4) If at any time:
(a) either Trustee shall acquire any conflicting interest as defined
in TIA Section 310(b) and fail to comply with the provisions of TIA
Section 310(b)(i), or
(b) either 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 for at
least six months, or
(c) either Trustee shall cease to be eligible under Section 6.08 and
shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for
at least six months, or
(d) either Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take
charge or control of such Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then, in
any such case, (i) the Company, by a Board Resolution, may remove
such Trustee with respect to all Securities, 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
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may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of such
Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(e) If either Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the U.S.
Trustee or the Canadian Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series)
provided, however, that the Company shall not be required to appoint
a successor Trustee to the Canadian Trustee if the Canadian Trustee
resigns or is removed and a Canadian Trustee under this Indenture is
no longer required under Trust Indenture Legislation. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of
a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of a Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series to the Holders of Securities of such series
in the manner provided for in Section 1.06. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
(g) If a Canadian Trustee under this Indenture is no longer required
by Trust Indenture Legislation, then the Company by a Board
Resolution may remove the Canadian Trustee.
69
SECTION 6.10 Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or
70
those series to which the appointment of such successor Trustee
relates. Whenever there is a successor Trustee with respect to one
or more (but less than all) series of securities issued pursuant to
this Indenture, the terms "Indenture" and "Securities" shall have
the meanings specified in the provisos to the respective definitions
of those terms in Section 1.01 which contemplate such situation.
(3) 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 rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(4) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which either Trustee or its corporate trust business
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
either Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of either Trustee, shall be the
successor of such Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by a
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities. In case any of the Securities shall
not have been authenticated by such predecessor Trustee, any successor Trustee
may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the
certificate of authentication of such Trustee; provided, however, that the right
-------- -------
to adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.12 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustees
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustees to
authenticate Securities of such series and the Trustees shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 1.06. Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
71
as if authenticated by either Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustees, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustees or either Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustees by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustees by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia or the laws of
Canada or any province thereof, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$25,000,000 and subject to supervision or examination by U.S. federal or state
or Canadian federal or provincial authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustees or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustees and to the Company. The Trustees may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustees may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustees agree to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustees
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.07.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to either Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
(Certificate of Authentication may be executed by either the U.S. Trustee
or the Canadian Trustee)
Dated:
--------------------
Computershare Trust Company, Inc., as U.S. Trustee, certifies that this is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Computershare Trust Company, Inc., as
U.S. Trustee
By:
--------------------------------
as Authenticating Agent
By:
--------------------------------
Authorized Officer
Dated:
--------------------
Computershare Trust Company of Canada, as Canadian Trustee, certifies
that this is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Computershare Trust Company of Canada,
as Canadian Trustee
By:
--------------------------------
as Authenticating Agent
By:
--------------------------------
Authorized Officer
SECTION 6.13 Joint Trustees.
The rights, powers, duties and obligations conferred and imposed upon the
Trustees are conferred and imposed upon and shall be exercised and performed by
the U.S. Trustee and the Canadian Trustee individually, except to the extent the
Trustees are required under Trust Indenture Legislation to perform such acts
jointly, and neither Trustee shall be liable or responsible for the acts or
omissions of the other Trustee. If the Trustees are unable to agree jointly to
act or refrain from acting with respect to any right,
73
power, duty or obligation conferred jointly upon the Trustees hereunder, the
decision of the U.S. Trustee to act or refrain from acting shall be binding upon
the Canadian Trustee.
Unless the context implies or requires otherwise, any written notice,
request, direction, certificate, instruction, opinion or other document (each
such document, a "Writing") delivered pursuant to any provision of this
Indenture to any of the U.S. Trustee or the Canadian Trustee shall be deemed for
all purposes of this Indenture as delivery of such Writing to the Trustee. Each
such trustee in receipt of such Writing shall notify such other trustee of its
receipt of such Writing within two Business Days of such receipt provided,
--------
however, that any failure of such trustee in receipt of such Writing to so
-------
notify such other trustee shall not be deemed as a deficiency in the delivery of
such Writing to the Trustee.
SECTION 6.14 Other Rights of Trustees.
Each Trustee shall retain the right not to act and shall not be liable for
refusing to act if, due to a lack of information or for any other reason
whatsoever, either Trustee, in its sole judgment, determines that such act might
cause it to be in non-compliance with any applicable anti-money laundering or
anti-terrorist legislation, regulation or guideline. Further, should either
Trustee, in its sole judgment, determine at any time that its acting under this
Indenture has resulted in its being in non-compliance with any applicable
anti-money laundering or anti-terrorist legislation, regulation or guideline,
then it shall have the right to resign on 10 days' written notice to all parties
provided (i) that such Trustee's written notice shall describe the circumstances
of such non-compliance; and (ii) that if such circumstances are rectified to
such Trustee's satisfaction within such 10 day period, then such resignation
shall not be effective;
It is expressly acknowledged that the Canadian Trustee may, in the course
of providing services hereunder, collect or receive financial and other personal
information about such parties and/or their representatives, as individuals, or
about other individuals related to the subject matter hereof, and use such
information for the following purposes:
(i) to provide the services required under this Indenture
and other services that may be requested from time to
time;
(ii) to help the Canadian Trustee manage its servicing
relationships with such individuals;
(iii) to meet the Canadian Trustee's legal and regulatory
requirements; and
(iv) if social insurance numbers are collected by the
Canadian Trustee, to perform tax reporting and to assist
in verification of an individual's identity for security
purposes.
Each party acknowledges and agrees that the Canadian Trustee may receive,
collect, use and disclose personal information provided to it or acquired by it
in the
74
course of this Indenture for the purposes described above and, generally, in the
manner and on the terms described in its Privacy Code, which the Canadian
Trustee shall make available on its website or upon request, including revisions
thereto. Further, each party agrees that it shall not provide or cause to be
provided to the Canadian Trustee any personal information relating to an
individual who is not a party to this Indenture unless that party has assured
itself that such individual understands and has consented to the aforementioned
uses and disclosures.
Unless otherwise notified, the Trustees shall be entitled to assume that
all payments have been made by the Company as required under this Indenture.
The Trustees may assume for the purposes of this Indenture that any
address on the register of the Holders of the Securities is the holder's actual
address and is also determinative as to residency.
The Trustees shall have no obligation to ensure or verify compliance with
any applicable laws or regulatory requirements on the issue, exercise or
transfer of any Securities provided such issue, exercise or transfer, as the
case may be, is effected in accordance with the terms of this Indenture. The
Trustees shall be entitled to process all transfers of Securities upon the
presumption that such transfers are permissible pursuant to all applicable laws
and regulatory requirements. The Trustees shall have no obligation to ensure
that legends appearing on the Securities certificates comply with regulatory
requirements or securities laws of any applicable jurisdiction.
Except as provided in this Indenture, the Trustees shall retain the right
not to act and shall not be held liable for refusing to act unless it has
received clear and reasonable documentation which complies with the terms of
this Indenture; such document must not require the exercise of any discretion or
independent judgment.
Each Trustee hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein
set forth and to hold all rights, privileges and benefits conferred hereby and
by law in trust for the various persons who shall from time to time be holders,
subject to all the terms and conditions herein set forth.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustees that none of the Company or the
Trustees or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustees shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
75
SECTION 7.02 Reports by Trustees.
(1) Within 60 days after o of each year commencing with the first o
after the first issuance of Securities pursuant to this Indenture,
the Trustees shall transmit to the Holders of Securities, in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such o if required by
Section 313(a) of the Trust Indenture Act.
(2) The Trustees shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act and Part VIII of the CBCA.
(3) A copy of such report shall, at the time of such transmission to the
Holders, be filed by the Trustees with the Company (Attention: Vice
President, Corporate & Legal Affairs), with each securities exchange
upon which any of the Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustees when
the Securities become listed on any securities exchange.
SECTION 7.03 Reports by the Company.
The Company shall:
(1) furnish to the Trustees, within 10 days after the Company is
required to file with or furnish the same to (A) the Commission,
copies, which may be in electronic format, of its annual and
quarterly reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with
the Trustees and the Commission (if permitted by the Commission), in
accordance with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations, each of such
reports to be prepared in accordance with GAAP, and (B) the Canadian
Securities Authorities, copies of the annual and quarterly reports
and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Canadian Securities
Authorities may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Canadian Securities Authorities pursuant to applicable Canadian
securities legislation;
76
(2) file with the Trustees, and the Commission and the Canadian
Securities Authorities, as applicable, in accordance with rules and
regulations prescribed from time to time by the Commission and the
Canadian Securities Authorities, respectively, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations
including, without limitation, filing with the Trustees a list of
all information in its possession as to the names and addresses of
all Holders pursuant to TIA Section 312(a) on such semi-annual dates
as may be specified by the Trustees;
(3) notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act or Canadian Securities legislation, or otherwise report
on an annual and quarterly basis on forms provided for such annual
and quarterly reporting pursuant to rules and regulations
promulgated by the Commission, the Company shall provide the
Trustees:
(a) within 10 days after the time periods required for the filing of
annual information forms and annual consolidated financial
statements (or similar annual filings) by the Canadian Securities
Authorities, the information required to be provided or incorporated
by reference in an annual information form, annual consolidated
financial statement or similar annual filing under the laws of
Canada or any province thereof to security holders of a corporation
with securities listed on the Toronto Stock Exchange or its
successor, whether or not the Company has any of its securities so
listed; and
(b) within 10 days after the time periods required for the filing of
interim reports by the Canadian Securities Authorities, the
information required to be provided in interim reports under the
laws of Canada or any province thereof to security holders of a
company with securities listed on the Toronto Stock Exchange or its
successor, whether or not the Company has any of its securities so
listed;
Such reports, to the extent permitted by the rules and regulations
of the Commission, will be prepared in accordance with Canadian
disclosure requirements and GAAP; provided, however, that the
Company shall not be obligated to file such reports with the
Commission; and
(4) transmit to all Holders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, within 30 days after the
filing thereof with the Trustees, such summaries of any information,
documents and reports required to be filed by the Company pursuant
to paragraphs (1), (2) and (3) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission; and
77
(5) file with the Exchanges and the Commission the reports created
pursuant to Section 7.02 hereof.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not amalgamate or consolidate with or merge into or
enter into any statutory arrangement with any other Person, or, directly or
indirectly, convey, transfer or lease all or substantially all of its properties
and assets to any Person, unless:
(1) the Person formed by or continuing from such amalgamation or
consolidation or into which the Company is merged or with which it
enters into such statutory arrangement or the Person which acquires
by operation of law or by conveyance or transfer, or which leases,
all or substantially all of the properties and assets of the Company
shall be a corporation, partnership or trust organized and validly
existing under the laws of Canada or any province or territory
thereof, the United States of America or any state thereof or the
District of Columbia or, if such amalgamation, merger,
consolidation, statutory arrangement or other transaction would not
impair the rights of Holders, any other country, and, unless the
Company is the continuing corporation, shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustees, in form satisfactory to the Trustees, the Company's
obligation for the due and punctual payment of the principal of (and
premium, if any), and interest, if any, on all the Securities and
the performance and observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have happened and be continuing; and
(3) the Company or such Person shall have delivered to the Trustees an
Officers' Certificate and an Opinion of Counsel, each stating that
such amalgamation, statutory arrangement, consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 8.02 Successor Person Substituted.
Upon any amalgamation or consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, transfer or lease all
or substantially all of the properties and assets of the Company to any Person
in accordance with Section 8.01, the successor Person formed by such
amalgamation or consolidation or into which the Company is merged, or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of,
78
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner described in
Section 8.01), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and the
coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustees, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustees, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal
of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the
--------
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective
--------
only when there is no Security which is Outstanding of any series
created prior to the
79
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(7) 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 6.10(b); or
(8) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity,
to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Indenture; provided such action shall not adversely affect the
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interests of the Holders of Securities of any series and any related
coupons in any material respect; or
(9) 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 4.01,
14.02 and 14.03; provided that any such action shall not adversely
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affect the interests of the Holders of Securities of such series and
any related coupons or any other series of Securities in any
material respect; or
(10) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualifications of
this Indenture under any applicable law of the United States and
Canada or of any province or territory thereof to the extent they do
not conflict with the applicable law of the United States heretofore
or hereafter enacted; or
(11) to change or eliminate any provisions where such change takes effect
when there are no Securities of any series Outstanding under this
Indenture.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustees, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustees may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture which affect such series of Securities or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental
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indenture shall, without the consent of the Holder of each Outstanding Security
of such series,
(1) change the Stated Maturity of the principal of (or premium, if any)
or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate
of interest, if any, thereon, or change any obligation of the
Company to pay Additional Amounts contemplated by Section 10.05
(except as contemplated by Section 8.01(1) and permitted by Section
9.01(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 5.02 or the amount thereof provable in bankruptcy pursuant
to Section 5.04, or adversely affect any right of repayment at the
option of any Holder of any Security of such series, or change any
Place of Payment where, or the Currency in which, any Security of
such series or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely
affect any right to convert or exchange any Security as may be
provided pursuant to Section 3.01 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture which
affect such series or certain defaults applicable to such series
hereunder and their consequences provided for in this Indenture, or
reduce the requirements of Section 15.04 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.08, except to increase any such percentage or to provide
that certain other provisions of this Indenture which affect such
series cannot be modified or waived without the consent of the
Holder of each Outstanding Security of such series.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
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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 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustees shall be entitled to receive,
in addition to the documents required by Section 1.02, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. Each
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects such Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05 Conformity with Trust Indenture Legislation.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of Trust Indenture Legislation as then in effect.
SECTION 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustees, bear a notation in form approved by the Trustees as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustees and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustees in exchange for Outstanding Securities of such series.
SECTION 9.07 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustees of any
supplemental indenture pursuant to the provisions of Section 9.02, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.06, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 10.01 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 3.01 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 10.02 Maintenance of Office or Agency.
(1) If the Securities of a series are issuable as Registered Securities,
the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange,
where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and, if
the Securities of a series are also issuable as Bearer Securities,
where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described
in Subsection 10.02(3).
(2) If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where
Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that, if the Securities
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of that series are listed on any securities exchange located outside
the United States and such securities exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States so
long as the Securities of that series are listed on such exchange
and (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where Securities of
that series that are convertible and exchangeable may be surrendered
for conversion or exchange, as applicable, and where notices and
demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served.
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(3) The Company will give prompt written notice to the Trustees of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustees with the
address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the U.S.
Trustee, except that Bearer Securities of any series and the related
coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective
presentations, surrenders, notices and demands.
(4) Unless otherwise specified with respect to any Securities pursuant
to Section 3.01, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
back located in the United States; provided, however, that, if the
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Securities of a series are payable in Dollars, payment of principal
of (and premium, if any) and interest, if any, on any Bearer
Security shall be made at the office of the Company's Paying Agent
in The City of New York, if (but only if) payment in Dollars of the
full amount of such principals, premium or interest, as the case may
be, at all offices or agencies outside the United States maintained
of such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other
similar restrictions.
(5) The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however,
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that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written
notice to the Trustees of any such designation or rescission and of
any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities as
contemplated by Section 3.01 with respect to a series of Securities,
the Company hereby initially appoints the U.S. Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent
to receive all such presentations, surrenders, notices and demands.
SECTION 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the Currency in which the Securities of
such series are payable (except as otherwise specified
84
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to
pay the principal of (or premium, if any) or interest, if any, on Securities of
such series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustees
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, prior to or on each due date of
the principal of (or premium, if any) or interest, if any, on any Securities of
that series, deposit with a Paying Agent a sum (in the Currency described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is such Trustee) the Company will promptly notify the Trustees of
its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustees) for any
series of Securities to execute and deliver to the Trustees an instrument in
which such Paying Agent shall agree with the Trustees, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustees notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any
payment of principal of (or premium, if any) or interest, if any, on
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustees, forthwith pay to the Trustees all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustees all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustees 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 Trustees, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustees or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company
85
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security or coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustees or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustees or such Paying Agent, before being
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required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.04 Statement as to Compliance.
The Company shall deliver to the Trustees, on or before 120 days after the
end of the Company's fiscal year and at any other reasonable time at the request
of a Trustee, an Officers' Certificate stating that a review of the activities
of the Company during such fiscal year has been made under the supervision of
the signing officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such officer signing such certificate, that the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred and is continuing, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or propose to take with respect thereto). The
Company shall deliver to the Trustees upon demand evidence in such form as the
Trustees may require as to compliance by the Company with any condition or
covenant of the Company set out herein relating to any action required or
permitted to be taken by the Company under this Indenture or as a result of any
obligation imposed by this Indenture. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 10.05 Additional Amounts.
If specified pursuant to Section 3.01, all payments made by or on behalf
of the Company under or with respect to the Securities of any series will be
made free and clear of and without withholding or deduction for or on account of
any present or future tax, duty, levy, impost, assessment or other government
charge (including penalties, interest and other liabilities related thereto)
imposed or levied by or on behalf of the Government of Canada or of any province
or territory thereof or by any authority or agency therein or thereof having
power to tax ("Canadian Taxes"), unless the Company is required to withhold or
deduct Canadian Taxes by law or by the interpretation or administration thereof
by the relevant government authority or agency. If the Company is so required to
withhold or deduct any amount for or on account of Canadian Taxes from any
payment made under or with respect to the Securities, the Company will pay as
additional interest such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder after such withholding
or deduction (including with
86
respect to Additional Amounts) will not be less than the amount the Holder would
have received if such Canadian Taxes had not been withheld or deducted;
provided, however, that no Additional Amounts will be payable with respect to a
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payment made to a Holder (an "Excluded Holder") in respect of the beneficial
owner thereof (i) with which the Company does not deal at arm's length (for
purposes of the Income Tax Act (Canada)) at the time of the making of such
payment, (ii) which is subject to such Canadian Taxes by reason of its failure
to comply with any certification, identification, information, documentation or
other reporting requirement if compliance is required by law, regulation,
administrative practice or an applicable treaty as a precondition to exemption
from, or a reduction in the rate of deduction or withholding of, such Canadian
Taxes, (iii) which is subject to such Canadian Taxes by reason of its being a
resident, domicile or national of, or engaged in business or maintaining a
permanent establishment or other physical presence in or otherwise having some
connection with Canada or any province or territory thereof otherwise than by
the mere holding of Securities or the receipt of payments thereunder, or (iv)
which is subject to such Canadian Taxes because it is not entitled to the
benefit of an otherwise applicable tax treaty by reason of the legal nature of
such Holder. The Company will make such withholding or deduction and remit the
full amount deducted or withheld to the relevant authority as and when required
in accordance with applicable law. The Company will pay all taxes, interest and
other liabilities which arise by virtue of any failure of the Company to
withhold, deduct and remit to the relevant authority on a timely basis the full
amounts required in accordance with applicable law. The Company will furnish to
the Holders, within 30 days after the date the payment of any Canadian Taxes is
due pursuant to applicable law, certified copies of tax receipts or other
satisfactory evidence of such payment by the Company.
If as a result of any payment by or on behalf of the Company under or with
respect to the Securities of any series, any Holder is required to pay tax under
Part XIII of the Income Tax Act (Canada) or any successor provisions in
circumstances where the Company is not required to make a withholding with
respect to such tax (for instance, in accordance with Section 803 of the
Regulations to the Income Tax Act (Canada)), then the Company will, upon demand
by any such Holder, indemnify such Holder (other than a Holder (i) with which
the Company does not deal at arm's length (for the purposes of the Income Tax
Act (Canada)) at the time of the making of such payment; (ii) which is subject
to such Canadian Taxes by reason of its failure to comply with any
certification, identification, information, documentation or other reporting
requirement if compliance is required by law, regulation, administrative
practice or an applicable treaty as a precondition to exemption from, or a
reduction in the rate of deduction or withholding of, such Canadian Taxes for
the payment of any such taxes, together with any interest, penalties and
expenses in connection therewith), or (iii) which is subject to such Canadian
Taxes because it is not entitled to the benefit of an otherwise applicable tax
treaty by reason of the legal nature of such Holder. All such amounts shall be
payable by the Company on demand and shall bear interest at the rate borne by
the Securities, calculated from the date incurred by the Holder to the date paid
by the Company. All such amounts shall be Additional Amounts for the purpose of
this Indenture.
Promptly following the Company becoming aware that the Company will be
obligated to pay Additional Amounts with respect to a payment hereunder, the
Company
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will deliver to the Trustees and to any Paying Agent an Officers' Certificate
stating the fact that such Additional Amounts will be payable and the amounts so
payable. References in this Indenture to interest, principal or other payments
made or to be made by the Company with respect to the Securities shall be deemed
also to refer to the payment of Additional Amounts provided for in Section 3.01
that may be payable in respect thereof.
The provisions of this Section 10.05 shall survive any termination,
defeasance or discharge of this Indenture.
SECTION 10.06 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon any property or assets of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
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discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 10.07 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
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right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 10.08 Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 10.06 and 10.07, or, as specified
pursuant to Section 3.01(17) for Securities of such series, in any covenants of
the Company added to this Article pursuant to Section 3.01(16) or Section
3.01(17) in connection with Securities of such series, if before the time for
such compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of any series, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustees to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 11.02 Election to Redeem; Notice to Trustees.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustees), notify the Trustees of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall deliver to the
Trustees such documentation and records as shall enable the Trustees to select
the Securities to be redeemed pursuant to Section 11.03. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish to the Trustees an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.03 Selection by Trustees of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustees, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustees
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
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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 3.01.
The Trustees shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
89
SECTION 11.04 Notice of Redemption.
Except as otherwise specified as contemplated by Section 3.01, notice of
redemption shall be given in the manner provided for in Section 1.06 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 11.06, if any,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to
be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 11.06 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption
Date or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price unless security or indemnity
satisfactory to the Company, the Trustees and any Paying Agent is
furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on such Redemption Date pursuant to
Section 3.05 or
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otherwise, the last date, as determined by the Company, on which
such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustees in the name and at the expense of the Company.
SECTION 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with a Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) an amount of money in
the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of such series
and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
SECTION 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
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installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
10.02) and, unless otherwise specified as contemplated by Section 3.01, only
upon presentation and surrender of coupons for such interest; and provided
--------
further that installments of interest on Registered Securities whose Stated
-------
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustees if there be furnished to
them such security or
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indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustees or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
-------- -------
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 10.02) and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustees so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustees duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and either
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 11.08 Tax Redemption.
If specified pursuant to Section 3.01, the Securities of a series will be
subject to redemption at any time, in whole but not in part, at a redemption
price equal to the principal amount thereof together with accrued and unpaid
interest to the date fixed for redemption, upon the giving of a notice as
described below, if (1) the Company determines that (a) as a result of any
change in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of Canada or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding application or interpretation of such laws, regulations or rulings
(including a holding by a court of competent jurisdiction), which change or
amendment is announced or becomes effective on or after a date specified
pursuant to Section 3.01, if any date is so specified, the Company has or will
become obligated to pay, on the next succeeding date on which interest is due,
Additional Amounts pursuant to Section 10.05 or (b) on or after a date specified
pursuant to Section 3.01, any action has been taken by any taxing authority of,
or any decision has been rendered by a court of competent jurisdiction in,
Canada or any political subdivision or taxing authority thereof or therein,
including any of those actions specified in (a) above, whether or not such
action was taken or decision was rendered with respect to the Company, or any
change, amendment, application or interpretation shall be officially proposed,
which, in any such case, in the Opinion of
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Counsel to the Company, will result in the Company becoming obligated to pay, on
the next succeeding date on which interest is due, Additional Amounts with
respect to any Security of such series and (2) in any such case, the Company in
its business judgment determines that such obligation cannot be avoided by the
use of reasonable measures available to the Company; provided, however, that (i)
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no such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company would be obligated to pay such Additional
Amounts were a payment in respect of the Securities then due, and (ii) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect.
In the event that the Company elects to redeem the Securities pursuant to
the provisions set forth in the preceding paragraph, the Company shall deliver
to the Trustees a certificate, signed by an authorized officer, stating that the
Company is entitled to redeem the Securities pursuant to their terms.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01 Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund shall
be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 12.03, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustees Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all un-matured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustees by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
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such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustees at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustees an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, 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 or crediting Securities of that
series pursuant to Section 12.02 (which Securities will, if not previously
delivered, accompany such certificate) and whether the Company intends to
exercise its right to make a permitted optional sinking fund payment with
respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 12.02 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustees shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 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 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment date, the Company shall pay to the
Trustees or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
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
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aggregate $100,000, the Trustees, 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
Trustees or any Paying Agent will be reimbursed by the Company) not in excess of
the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 13.01 Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
SECTION 13.02 Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with a Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 10.03) an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 13.03 Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places which the Company shall from time to time notify the
95
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 13.04 When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however, that coupons
-------- -------
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified pursuant to Section
3.01, only upon presentation and surrender of such coupons; and provided further
-------- -------
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
13.02 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustees if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustees or any Paying Agent any
such missing coupon in respect of which a deduction
96
shall have been made as provided in the preceding sentence, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
-------- -------
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 10.02) and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 13.05 Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and either Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01 Company's Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, the provisions of this Article shall apply to each
series of Securities, and the Company may, at its option, effect defeasance (as
defined below) of the Securities of or within a series under Section 14.02, or
covenant defeasance (as defined below) of or within a series under Section 14.03
in accordance with the terms of such Securities and in accordance with this
Article.
SECTION 14.02 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 14.04 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 14.05 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustees, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the
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following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
related coupons to receive, solely from the trust fund described in Section
14.04 and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on such Securities and
any related coupons when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03
and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 10.05, (C) the rights, powers, trusts,
duties and immunities of the Trustees hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 14.03
with respect to such Securities and any related coupons.
SECTION 14.03 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
released from its obligations under Sections 10.06 and 10.07, and, if specified
pursuant to Section 3.01, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after the date the
conditions set forth in Section 14.04 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any related coupons shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any related coupons,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under clauses (4), (5) or (9) of Section 5.01
or otherwise, as the case may be, but, except as specified above, the remainder
of this Indenture and such Securities and any related coupons shall be
unaffected thereby.
SECTION 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
14.02 or Section 14.03 to any Outstanding Securities of or within a series and
any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with either Trustee (or another trustee satisfying the
requirements of Section 6.08 who shall agree to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an amount
(in such Currency in which such Securities and
98
any related coupons are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such
Securities (determined on the basis of the Currency in which such
Securities are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of and
premium, if any, and interest, if any, under such Securities and any
related coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustees, to pay and discharge, and which
shall be applied by the Trustees (or other qualifying trustee) to
pay and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any related
coupons on the Stated Maturity (or Redemption Date, if applicable)
of such principal (and premium, if any) or installment of interest,
if any, (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any related
coupons on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities
and any related coupons, and (iii) all amounts due the Trustees
under Section 6.07; provided that the Trustees shall have been
--------
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the
Company may give to the Trustees, in accordance with Section 11.02
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 Eleven hereof,
which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (7) and (8) of Section
5.01 are concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a
party or by which it is bound.
(4) In the case of an election under Section 14.02, the Company shall
have delivered to the Trustees an Opinion of Counsel in the United
States stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y)
since the date
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of execution of this Indenture, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for U.S. federal income tax purposes
as a result of such defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not
occurred.
(5) In the case of an election under Section 14.03, the Company shall
have delivered to the Trustees an Opinion of Counsel in the United
States to the effect that the Holders of such Outstanding Securities
will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such covenant defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred.
(6) The Company shall have delivered to the Trustees an Opinion of
Counsel in Canada or a ruling from the Canada Revenue Agency to the
effect that the Holders of such Outstanding Securities will not
recognize income, gain or loss for Canadian federal, provincial or
territorial income tax or other tax purposes as a result of such
defeasance or covenant defeasance, as applicable, and will be
subject to Canadian federal or provincial income tax and other tax
on the same amounts, in the same manner and at the same times as
would have been the case had such defeasance or covenant defeasance,
as applicable, not occurred (and for the purposes of such opinion,
such Canadian counsel shall assume that Holders of the Securities
include Holders who are not resident in Canada).
(7) The Company is not an "insolvent person" within the meaning of the
Bankruptcy and Insolvency Act (Canada) on the date of such deposit
or at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(8) 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 3.01.
(9) The Company shall have delivered to the Trustees an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for, relating to either the defeasance
under Section 14.02 or the covenant defeasance under Section 14.03
(as the case may be), have been complied with.
100
SECTION 14.05 Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.01) (including the proceeds thereof) deposited with a Trustee (or
other qualifying trustee, collectively for purposes of this Section, the
"Trustee") pursuant to Section 14.04 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by such Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as such Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in Section 14.04(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 14.04(1) has been made in respect of such Security, or (b) 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
14.04(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify such Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 14.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article to the contrary notwithstanding, such 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 14.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to such Trustee, are in excess of the amount
thereof which would then be required to be
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deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 14.06 Reinstatement.
If a Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.05 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be,
until such time as such Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 14.05; provided, however, that if the Company
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makes any payment of principal of (or premium, if any) or interest, if any, on
any such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment from the money
held by such Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01 Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 15.02 Call, Notice and Place of Meetings.
(1) The Trustees may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 15.01, to be held
at such time and at such place in The City of New York, in Toronto
or in London as the Trustees shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 1.06, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustees to call a
meeting of the Holders of Securities of such series for any purpose
specified in Section 15.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustees shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the
102
meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified,
as the case may be, may determine the time and the place in The City
of New York, in Toronto or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided
in paragraph (a) of this Section.
SECTION 15.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder of Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustees and their counsel and any representatives of the Company and its
counsel.
SECTION 15.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that, if any action is
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to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
103
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
who have casted their votes; provided, however, that, except as limited by the
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proviso to Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section, if any action is
to be taken at a meeting of Holders of Securities of any series with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action that this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all Outstanding
Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining
whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 15.05 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any provisions of this Indenture, the Trustees may
make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of
the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such
104
regulations, the holding of Securities shall be proved in the manner
specified in Section 1.04 and the appointment of any proxyholder
shall be proved in the manner specified in Section 1.04 or by having
the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxyholders, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.04 or other proof.
(2) The Trustees shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section
15.02(b), in which case the Company or the Holders of Securities of
the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in
Section 1.01); provided, however, that no vote shall be cast or
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counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or a proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 15.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the
105
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was given
as provided in Section 15.02 and, if applicable, Section 15.04. Each copy shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustees to be preserved by the Trustees, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated. This Indenture 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 Indenture.
* * * * *
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
VASOGEN INC.
By: (signed) "o"
----------------------------------
Name: o
Title: o
COMPUTERSHARE TRUST COMPANY, INC.,
as U.S. Trustee
By: (signed) "o"
----------------------------------
Name: o
Title: o
By: (signed) "o"
----------------------------------
Name: o
Title: o
COMPUTERSHARE TRUST COMPANY OF CANADA,
as Canadian Trustee
By: (signed) "o"
----------------------------------
Name: o
Title: Authorized Signing Officer
By: (signed) "o"
----------------------------------
Name: o
Title: Authorized Signing Officer
107
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
VASOGEN INC.
o% Notes due o
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by any person(s) that is not a citizen or resident of the United States; a
corporation or partnership (including any entity treated as a corporation or
partnership for United States Federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia unless, in the case of a partnership, Treasury Regulations provide
otherwise; any estate whose income is subject to United States Federal income
tax regardless of its source or; a trust if (A) a United States court can
exercise primary supervision over the trust's administration and one or more
United States persons are authorized to control all substantial decisions of the
trust or (B) it was in existence on August 20, 1996 and has a valid election in
effect under applicable Treasury Regulations to be treated as a United States
person ("United States persons(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulation Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Vasogen Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
108
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S.$ o of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a permanent global
security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the
15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the Exchange
Date, applicable]
[Name of Person Making Certification]
By:
----------------------------------
Name:
Title:
109
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
VASOGEN INC.
o% Notes due o
This is to certify that based solely on written certifications that we
have receive in writing, by tested telex or by electronic transmission from each
of the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, U.S.$ o principal amount of the
above-captioned Securities (i) is owned by any person(s) that is not a citizen
or resident of the United States; a corporation or partnership (including any
entity treated as a corporation or partnership for United States Federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia unless, in the case of a
partnership, Treasury Regulations provide otherwise; any estate whose income is
subject to United States Federal income tax regardless of its source or; a trust
if (A) a United States court can exercise primary supervision over the trust's
administration and one or more United States persons are authorized to control
all substantial decisions of the trust or (B) it was in existence on August 20,
1996 and has a valid election in effect under applicable Treasury Regulations to
be treated as a United States person ("United States person(s)"), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulation Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise Vasogen Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, to the
further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
110
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the
15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the Exchange
Date, applicable]
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System]
[CLEARSTREAMBANKING]
By:
-----------------------------------------
Name:
Title:
