Ace Aviation Holdings Inc. 4.25% Convertible Senior Notes due 2035 Indenture Dated as of April 6, 2005 CIBC Mellon Trust Company, As Trustee
Exhibit
(d)(1)
EXECUTION
COPY
4.25%
Convertible Senior Notes due 2035
--------------------
Dated
as of April 6, 2005
--------------------
CIBC
Mellon Trust Company,
As
Trustee
TABLE
OF CONTENTS
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Page
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ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
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1.1
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Definitions.
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1
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1.2
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Other
Definitions.
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8
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1.3
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Rules
of Construction.
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10
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ARTICLE
II
THE
SECURITIES
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2.1
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Form
and Dating.
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10
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2.2
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Execution
and Authentication.
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12
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2.3
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No
Notice of Trusts.
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13
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2.4
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Ownership
of Securities.
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14
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2.5
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Registrar,
Paying Agent and Conversion Agent.
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14
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2.6
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Paying
Agent to Hold Money in Trust.
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15
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2.7
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Lists
of Holders of Securities.
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15
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2.8
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Transfer
and Exchange.
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16
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2.9
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Replacement
Securities.
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17
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2.10
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Outstanding
Securities.
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18
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2.11
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Concurrence
in any Notice, Direction, Waiver or Consent.
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18
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2.12
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Temporary
Securities.
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19
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2.13
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Cancellation.
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19
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2.14
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Legend;
Additional Transfer and Exchange Requirements.
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19
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2.15
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CUSIP
and/or ISIN Numbers.
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27
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2.16
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Computation
of Interest.
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28
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ARTICLE
III
REDEMPTION
AND PURCHASE
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3.1
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To
Redeem; Notice to Trustee.
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28
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3.2
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Selection
of Securities to be Redeemed.
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28
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3.3
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Redemption
Notice.
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29
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3.4
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Effect
of a Redemption Notice.
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31
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3.5
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Deposit
of Redemption Price.
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31
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3.6
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Right
to Pay Redemption Price in Shares.
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32
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3.7
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Securities
Redeemed in Part.
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35
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3.8
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Redemption
for Tax Reasons.
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35
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3.9
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Change
of Control.
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36
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3.10
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Effect
of Change of Control Repurchase Notice.
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40
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3.11
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Deposit
of Change of Control Repurchase Price.
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41
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3.12
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Repayment
to the Company.
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41
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3.13
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Right
to Pay Change of Control Repurchase Price in Shares.
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42
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3.14
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Purchase
of Securities at Option of the Holder on Specified Dates.
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45
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ii
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3.15
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Right
to Pay Put Right Purchase Price in Shares.
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49
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3.16
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Right
to Pay Principal Amount of the Securities in Shares.
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52
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3.17
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Securities
Purchased in Part.
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55
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3.18
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Compliance
with Securities Laws Upon Purchase of Securities.
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56
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3.19
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Purchase
of Securities in Open Market.
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56
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ARTICLE
IV
CONVERSION
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4.1
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Conversion
Privilege and Conversion Rate.
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56
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4.2
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Conversion
Procedure.
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59
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4.3
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Fractional
Shares.
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61
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4.4
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Company
to Provide Shares.
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61
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4.5
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Adjustment
of Conversion Rate.
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61
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4.6
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No
Adjustment.
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69
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4.7
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Notice
of Adjustment.
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70
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4.8
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Notice
of Certain Transactions.
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70
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4.9
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Effect
of Reclassification, Consolidation, Amalgamation, Merger or Sale on
Conversion Privilege.
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71
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4.10
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Trustee's
Disclaimer.
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73
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4.11
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Voluntary
Increase.
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73
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4.12
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Payment
of Cash in Lieu of Shares.
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73
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ARTICLE
V
COVENANTS
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5.1
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Payment
of Securities.
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74
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5.2
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Reporting
Requirements.
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75
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5.3
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Compliance
Certificates.
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76
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5.4
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Further
Instruments and Acts.
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76
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5.5
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Maintenance
of Corporate Existence.
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76
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5.6
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Rule 144A
Information Requirement.
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76
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5.7
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Stay,
Extension and Usury Laws.
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76
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5.8
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Payment
of Additional Amounts.
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77
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5.9
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Maintenance
of Office or Agency.
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79
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ARTICLE
VI
CONSOLIDATION;
MERGER; CONVEYANCE; TRANSFER OR LEASE
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6.1
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Company
may Consolidate, Etc., Only on Certain Terms.
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79
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6.2
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Successor
Substituted.
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80
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ARTICLE
VII
DEFAULT
AND REMEDIES
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7.1
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Events
of Default.
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80
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7.2
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Acceleration.
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83
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7.3
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Other
Remedies.
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83
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-iii-
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7.4
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Waiver
of Defaults and Events of Default.
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83
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7.5
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Control
by Majority.
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84
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7.6
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Limitations
on Suits.
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84
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7.7
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Rights
of Holders to Receive Payment and to Convert.
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84
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7.8
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Collection
Suit by Trustee.
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85
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7.9
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Trustee
may File Proofs of Claim.
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85
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7.10
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Priorities.
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85
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7.11
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Appointment
of Co-Trustee.
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86
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ARTICLE
VIII
TRUSTEE
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8.1
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Indenture
Legislation.
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87
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8.2
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Obligations
of Trustee.
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87
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8.3
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Rights
of Trustee.
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88
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8.4
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Individual
Rights of Trustee.
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90
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8.5
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Trustee's
Disclaimer.
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90
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8.6
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Notice
of Default or Events of Default.
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90
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8.7
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Compensation
and Indemnity.
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90
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8.8
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Replacement
of Trustee.
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91
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8.9
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Successor
Trustee by Merger, Etc.
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92
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8.10
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Eligibility;
Disqualification.
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92
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ARTICLE
IX
SATISFACTION
AND DISCHARGE OF INDENTURE
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9.1
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Satisfaction
and Discharge of Indenture.
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93
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9.2
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Application
of Trust Money.
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94
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9.3
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Repayment
to Company.
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94
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9.4
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Reinstatement.
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95
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ARTICLE
X
AMENDMENTS;
SUPPLEMENTS AND WAIVERS
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10.1
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Without
Consent of Holders.
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95
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10.2
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With
Consent of Holders.
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96
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10.3
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Revocation
and Effect of Consents.
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98
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10.4
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Notation
on or Exchange of Securities.
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98
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10.5
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Trustee
to Sign Amendments, Etc.
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98
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10.6
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Effect
of Supplemental Indentures.
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99
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ARTICLE
XI
MEETINGS
OF HOLDERS
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11.1
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Right
to Convene Meetings.
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99
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11.2
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Notices
of Meetings.
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99
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11.3
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Chairman.
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99
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11.4
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Quorum.
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99
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-iv-
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11.5
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Power
to Adjourn.
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100
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11.6
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Show
of Hands.
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100
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11.7
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Poll.
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100
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11.8
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Voting.
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100
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11.9
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Company
and Trustee May Be Represented.
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101
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11.10
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Minutes.
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101
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11.11
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Binding
Effect of Resolutions.
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101
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11.12
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Record
Date for Vote or Consent of Holders of Securities.
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101
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11.13
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Rules
by Trustee, Paying Agent, Registrar and Conversion Agent.
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101
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ARTICLE
XII
MISCELLANEOUS
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12.1
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Notices.
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102
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12.2
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Mail
Service Interruption.
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103
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12.3
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Certificate
and Opinion as to Conditions Precedent.
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103
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12.4
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Day
not a Business Day.
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104
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12.5
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Governing
Law.
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104
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12.6
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No
Adverse Interpretation of Other Agreements.
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104
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12.7
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No
Recourse Against Others.
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104
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12.8
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No
Security Interest Created.
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104
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12.9
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Benefits
of Indenture.
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105
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12.10
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Successors.
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105
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12.11
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Table
of Contents, Headings, Etc.
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105
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12.12
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Choice
of Language.
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105
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12.13
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Other
Currencies.
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105
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12.14
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Severability.
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105
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12.15
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No
Conflict of Interest.
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106
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12.16
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Assignment
and Enurement.
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106
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12.17
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Acceptance
of Trusts.
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106
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12.18
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Counterparts
and Formal Date.
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106
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EXHIBIT
A
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A-1
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-1-
THIS
INDENTURE dated as of April 6, 2005 is between ACE Aviation Holdings Inc.,
a corporation duly organized under the laws of Canada (the “Company”), and CIBC Mellon
Trust Company, a trust company organized and existing under the laws of Canada,
as Trustee (the “Trustee”).
In
consideration of the purchase of the Securities (as defined herein) by the
Holders thereof, both parties agree as follows for the benefit of the other and
for the equal and ratable benefit of the Holders of the Company’s 4.25%
Convertible Senior Notes Due 2035.
ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
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1.1
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Definitions.
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“ACE Articles of Arrangement”
means the certificate and articles of arrangement of the Company dated
September 30, 2004.
“Affiliate” when used to
indicate a relationship with a person or company, has the same meaning as set
forth in the Securities
Act (Ontario).
“Agent” means any Registrar,
Paying Agent or Conversion Agent.
“Applicable Procedures” means,
with respect to any transfer or exchange of beneficial ownership interests in a
Global Security, the rules and procedures of the Depositary as in effect from
time to time, to the extent applicable to such transfer or
exchange.
“Beneficial Ownership” has the
same meaning as set forth in the Securities Act
(Ontario).
“Board of Directors” means
either the board of directors of the Company or any committee of the Board of
Directors authorized to act for it with respect to this Indenture.
“Business Day” means any day
other than a Saturday, Sunday or statutory holiday in Montreal, Québec or
Toronto, Ontario.
“Canadian GAAP” means generally
accepted accounting principles in Canada as in effect from time to time,
including those set out in the Handbook of the Canadian Institute of Chartered
Accountants.
“Capital Stock” of any Person
means any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
equity of such Person, but excluding any debt securities convertible into such
equity.
“Cash” or “cash” means such coin or
currency of Canada as at any time of payment is legal tender for the payment of
public and private debts.
“Certificated Security” means a
Security that is in substantially the form attached as Exhibit A but that
does not include the information or the schedule called for by footnote 1 and 2
thereof.
-2-
"Change of Control" means
(i) the acquisition by any Person of Beneficial Ownership, directly or
indirectly, through a purchase, merger (except as set forth in clause (ii)
below) or other acquisition transaction or series of transactions, of Shares
entitling that person to exercise 50% or more of the total voting power of all
Shares entitled to vote generally in elections of directors and representing at
least 30% of the equity of the Company, other than any acquisition by the
Company, any of its subsidiaries or any of its employee benefit plans; or
(ii) the Company's amalgamation, consolidation or merger with or into any
other Person, any merger of another person into the Company, or any conveyance,
transfer, sale, lease or other disposition of all or substantially all of the
Company's and the Company's subsidiaries' properties and assets, taken as a
whole, to another person, other than any transaction pursuant to which holders
of Shares immediately preceding the transaction are entitled to exercise,
directly or indirectly, 50% or more of the total voting power of all shares
entitled to vote generally in elections of directors of the continuing or
surviving Person immediately after the transaction. Notwithstanding anything to
the contrary set forth herein, a Change of Control will be deemed not to have
occurred if at least 90% of the consideration for the Shares (excluding cash
payments for fractional Shares and cash payments made in respect of dissenters'
appraisal rights) in the transaction or transactions constituting the Change of
Control consists of common shares traded on the TSX, a U.S. national securities
exchange or quoted on the Nasdaq National Market, or which will be so traded or
quoted when issued or exchanged in connection with the Change of Control, and as
a result of such transaction or transactions the Securities become convertible
solely into such shares; provided, however, that if, prior to the date that is
five years plus one day from the last Original Issue Date, Holders would
otherwise be entitled to receive, upon conversion of the Securities, any
Ineligible Consideration, such Holders shall not be entitled to receive such
Ineligible Consideration but the Company or the successor or acquiror, as the
case may be, shall have the right (at the sole option of the Company or the
successor or acquiror, as the case may be) to deliver either such Ineligible
Consideration or "prescribed securities" for the purposes of clause
212(1)(b)(vii)(E) of the Tax Act (or any successor provision) with a market
value equal to the market value of such Ineligible Consideration.
"Change of Control Effective
Date" means the date on which any Change of Control becomes
effective.
"Change of Control Repurchase
Price" of any Security, means 100% of the principal amount of the
Security to be purchased plus accrued and unpaid interest, if any, to, but
excluding, the Change of Control Repurchase Date.
"Closing Price" of the Shares
on any Trading Day means the weighted average, based on trading volumes, of the
reported last sale prices per Voting Share and Variable Voting Share (or, if no
last sale prices are reported, the average of the bid and ask prices per Share
or, if more than one in either case, the average of the average bid and the
average ask prices per Share) on such date reported by the TSX or, if the Voting
Shares or Variable Voting Shares are not listed on the TSX, as reported or
quoted by the principal securities exchange or market on which the Voting Shares
or Variable Voting Shares are listed or quoted, or if no such prices are
available, the "Closing Price" per Share shall be the fair value of a Share (or
such other security) as reasonably determined by the Board of Directors (which
determination shall be conclusive and shall be evidenced by an Officers'
Certificate delivered to the Trustee).
-3-
"Company" means the party named
as such in the first paragraph of this Indenture until a successor replaces it
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Conversion Rate" means the
rate at which Shares shall be delivered upon conversion, which rate shall be
initially 20.8333 Shares for each $1,000 principal amount of Securities, as
adjusted from time to time pursuant to the provisions of this
Indenture.
"Conversion Reference
Period" means:
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(i)
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for
Securities that are converted after the Company has specified a Redemption
Date, the ten consecutive Trading Days beginning on the third Trading Day
following such Redemption Date (in the case of securities being converted
which were previously called for redemption (including a partial
redemption), this clause (i) shall only apply to those Securities
that are subject to redemption);
and
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(ii)
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in
all other instances, the ten consecutive Trading Days beginning on the
third Trading Day following the Conversion
Date.
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"Corporate Trust Office" means
the office of the Trustee at which at any particular time the trust created by
this Indenture shall be administered, which office at the date of the execution
of this Indenture is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇; Attention: Manager, Fiduciary Services, or at any
other time at such other address as the Trustee may designate from time to time
by notice to the Holders and the Company.
"CTA" means the Canada Transportation Act and
the regulations thereunder, as amended.
"Current Market Price" means
the average Closing Price of the Shares for each of the ten consecutive Trading
Days ending on the third Trading Day preceding the Redemption Date, Change of
Control Repurchase Date, Put Right Purchase Date or Final Maturity Date, as the
case may be, approximately adjusted to take into account the occurrence, during
the period commencing on the first of such Trading Days during such ten Trading
Day period and ending on such Redemption Date, Change of Control Repurchase
Date, Put Right Purchase Date or Final Maturity Date, of any events that would
result in an adjustment of the Conversion Rate with respect to the
Shares.
"Default" means, when used with
respect to the Securities, any event that is or, after notice or passage of
time, or both, would be, an Event of Default.
"Exchange Act" means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
"Final Maturity Date" means
June 1, 2035.
"Global Security" means a
Security in global form that is in substantially the form attached as
Exhibit A and that includes the information and schedule called for in
footnote 1
-4-
thereof
and which is deposited with the Depositary or its custodian and registered in
the name of the Depositary or its nominee.
"Holder" or "Holder of a Security" means
the person in whose name a Security is registered on the Registrar's
books.
"Indebtedness" means, with
respect to any person, without duplication:
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(i)
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all
obligations and other liabilities, contingent or otherwise, of such person
for borrowed money (including overdrafts), including all such obligations
and other liabilities accruing or incurred after the commencement of any
bankruptcy or insolvency proceeding at the rate or on the amount specified
in the applicable Indebtedness, in each case, whether or not a claim
therefore is allowed, allowable or enforceable in such bankruptcy or
insolvency proceeding, or for the deferred purchase price of property or
services, excluding any trade payables and other accrued current
liabilities incurred in the ordinary course of business, but including all
obligations, contingent or otherwise, of such person in connection with
any letters of credit and acceptances issued under letter of credit
facilities, acceptance facilities or other similar
facilities;
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(ii)
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all
obligations of such person evidenced by credit or loan agreements, notes,
bonds, debentures or other similar instruments;
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(iii)
|
all
obligations and other liabilities, contingent or otherwise, of such person
under any conditional sale or other title retention agreement with respect
to property acquired by such person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property) but excluding trade
payables arising in the ordinary course of business;
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(iv)
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all
obligations and liabilities, contingent or otherwise, in respect of leases
of such person required, in conformity with Canadian GAAP, to be accounted
for as capitalized lease obligations on the consolidated balance sheet of
such person;
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(v)
|
all
obligations of such person under or in respect of interest rate
agreements, currency agreements or other swap, cap, floor or collar
agreements, hedge agreements, forward contracts or similar instruments or
agreements or foreign currency hedge, exchange or purchase or similar
instruments or agreements;
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(vi)
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the
present value of the obligations of such person as lessee for net rental
payments (excluding all amounts required to be paid
on
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-5-
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account
of maintenance and repairs, insurance, taxes, assessments, water,
utilities and similar charges to the extent included in such rental
payments) during the remaining term of the lease included in any sale and
leaseback transaction, including any period for which such lease has been
extended or may, at the option of the lessor, be extended (this present
value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with
Canadian GAAP);
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(vii)
|
all
indebtedness referred to in (but not excluded from) the preceding clauses
of this definition of other persons, the payment of which is secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien on or with respect to
property owned by such person, including, without limitation, accounts and
contract rights, even though such person has not assumed or become liable
for the payment of such indebtedness (the amount of such obligation being
deemed to be the lesser of the value of such property or asset or the
amount of the obligation so secured), and all obligations of such person
with respect to receivable securitization facilities;
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(viii)
|
all
direct or indirect guarantees or similar arrangements by such person of
indebtedness referred to in this definition of any other person;
and
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(ix)
|
any
and all refinancings, replacements, deferrals, renewals, extensions and
refundings of or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in the clauses
above.
|
"Indenture" means this
Indenture as amended or supplemented from time to time pursuant to the terms of
this Indenture.
"Indenture Legislation" means
the provisions, if any, of any statute of Canada or a province thereof, and the
respective regulations thereunder, relating to trust indentures and/or to the
rights, duties and obligations of trustees under trust indentures and of
companies issuing debt obligations under trust indentures, to the extent that
such provisions are at the time in force and applicable to this
Indenture.
"Ineligible Consideration"
means any property (including cash) or securities that would not constitute
"prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) of the Tax
Act (or any successor provision) which a Holder would otherwise be entitled to
receive.
"Initial Purchasers" means RBC
Dominion Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.,
CIBC World Markets Inc., Citigroup Global Markets Canada Inc., Deutsche Bank
Securities Limited, TD Securities Inc. and Genuity Capital Markets.
-6-
"Interest Payment Date" means
June 1 and December 1 of each year, commencing December 1, 2005.
"Officer" means the Chairman or
any Co-Chairman of the Board, any Vice Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Chief Legal Officer, the Controller, the Secretary, any Assistant
Controller or any Assistant Secretary of the Company.
"Officers' Certificate" means a
certificate signed on behalf of the Company by two Officers; provided, however,
that for purposes of Sections 4.9 and 5.3, "Officers' Certificate" means a
certificate signed by (a) the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Chief Legal Officer of the Company
and (b) one other Officer.
"Opinion of Counsel" means a
written opinion from legal counsel reasonably acceptable to the Trustee. The
counsel may be an employee of or counsel to the Company or the
Trustee.
"Original Issue Date" means the
date on which the Security was originally issued or deemed issued as set forth
on the face of the Security.
"Person" or "person" means any individual,
partnership, limited partnership, association, body corporate, trust, joint
venture, trustee, executor, administrator, legal representative, government,
regulatory authority, or other entity or any syndicate or group that would be
deemed to be a "person" under the Securities Act
(Ontario).
"Prospectus" means the final
short form prospectus of the Company dated March 30, 2005 relating to the
offering of Securities in Canada, in the English and French languages, as it may
be amended.
"Public Acquiror Change of
Control" means any event constituting a Change of Control that would
otherwise require the Company to make a Change of Control Purchase Offer in
accordance with Section 3.9, where either (a) the acquirer or (b) if not
the acquirer, a direct or indirect Majority-owned subsidiary of the acquirer or
(c) if not the acquirer or any direct or indirect Majority-owned subsidiary of
the acquirer, a corporation by which the acquirer is directly or indirectly
Majority-owned, has a class of common shares traded on the TSX, a U.S. national
securities exchange or quoted on the Nasdaq National Market or which will be so
traded or quoted when issued or exchanged in connection with such Change of
Control, and the acquirer has designated such common shares to serve as the
public acquirer shares in the transaction. "Majority-owned" for the
purposes of this definition means having Beneficial Ownership of more than 50%
of the total voting power of the respective Person's Voting Stock.
"Public Acquiror Shares" means
the class of common shares of an entity referred to in section (a), (b), or
(c) of the first sentence of the definition of Public Acquiror Change of Control
that has been designated to serve as the public acquirer common shares in the
transaction.
"Qualified Canadian" means a
Canadian for the purposes of the CTA.
"Redemption Date" when used
with respect to any Security to be redeemed, means the date fixed by the Company
for such redemption pursuant to Section 3.1.
-7-
"Redemption Price" when used
with respect to any Security to be redeemed, means 100% of the principal amount
thereof, plus accrued and unpaid interest, if any, to but excluding the
Redemption Date.
"Regular Record Date" means,
with respect to each Interest Payment Date, the May 15 or November 15
(or on the next Business Day, if such date is not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation
S under the Securities Act.
"Residency Declaration" means a
declaration substantially in the form set forth in Exhibit A, or in such
other form as is acceptable to the Company or the Trustee, by which a Holder of
Securities certifies that such Holder is a Qualified Canadian.
"Restricted Global Security"
means a Global Security that is a Restricted Security.
"Restricted Security" means a
Security required to bear the restricted legend set forth in the form of
Security annexed as Exhibit A.
"Rule 144" means
Rule 144 under the Securities Act or any successor to such
Rule.
"Rule 144A" means
Rule 144A under the Securities Act or any successor to such
Rule.
"SEC" means the United States
Securities and Exchange Commission.
"Securities" means the up to
$330,000,000 aggregate principal amount of 4.25% Convertible Senior Notes due
2035, or any of them (each a "Security"), as amended or
supplemented from time to time, that are issued under this
Indenture.
"Securities Act" means the
Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder, as in effect
from time to time.
"Share Price" means the price
paid per Share in connection with a Change of Control as determined pursuant to
Section 4.1(f).
"Shares" means the Variable
Voting Shares and/or the Voting Shares, as the context may require, and "Share" means a Variable Voting
Share or a Voting Share.
"Subsidiary" means, in relation
to the Company, any entity, including a corporation, trust, partnership or
limited partnership, which is controlled, directly or indirectly, by the
Company.
"Tax Act" means the Income Tax Act (Canada) and
the regulations enacted thereunder.
"Trading Day" means a day
during which the TSX is open for trading and at least one board lot of each of
the Variable Voting Shares and the Voting Shares is traded on the TSX. A "Trading Day" only includes
those days that have a scheduled closing time of 4:00 p.m. (Toronto time) or the
then standard closing time for regular trading on the TSX.
-8-
"Trustee" means the party named
as such in the first paragraph of this Indenture until a successor replaces it
in accordance with the provisions of this Indenture, and thereafter means the
successor.
"Trust Officer" means, with
respect to the Trustee, any officer assigned to the Corporate Trust Office, and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"TSX" means the Toronto Stock
Exchange, a division of TSX Inc., through which the senior listing operations of
TSX Group Inc. are conducted.
"United States" means the
United States of America, its territories and possessions, any State of the
United States, and the District of Columbia.
"Unrestricted Global Security"
means a Global Security that is not a Restricted Security.
"U.S. Affiliate" when used to
indicate a relationship with a person or company, has the same meaning as set
forth in Rule 144(a)(i) under the Securities Act.
"Variable Voting Shares" means
the Class A variable voting shares in the capital of the Company, having the
rights, privileges, restrictions and conditions set out in the ACE Articles of
Arrangement.
"Voting Shares" means the Class
B voting shares in the capital of the Company, having the rights, privileges,
restrictions and conditions set out in the ACE Articles of
Arrangement.
"Vice President" when used with
respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
"Voting Stock" of a Person
means all classes of Capital Stock or other interests (including partnership
interests) of such Person then outstanding and normally entitled (without regard
to the occurrence of any contingency within the control of such person to
satisfy) to vote in the election of directors, managers or trustees
thereof.
|
1.2
|
Other
Definitions.
|
|
Term
|
Defined in
Section
|
|
|
"Agent
Members"
|
2.1
|
|
|
"Additional
Amounts"
|
5.8
|
|
|
"Bankruptcy
Law"
|
7.1
|
|
|
"Canadian
Taxes"
|
5.8
|
|
|
"Change
of Control Company Notice"
|
3.9
|
|
|
"Change
of Control Purchase Offer"
|
3.9
|
|
|
"Change
of Control Repurchase Date"
|
3.9
|
|
|
"Change
of Control Repurchase Notice"
|
3.9
|
|
|
"Company
Order"
|
2.2
|
|
|
"Company
Put Right Notice"
|
3.14
|
-9-
|
Term
|
Defined in
Section
|
|
|
"Conversion
Agent"
|
2.5
|
|
|
"Conversion
Date"
|
4.2
|
|
|
"CDS"
|
2.1
|
|
|
"Deemed
Interest Period"
|
2.16
|
|
|
"Depositary"
|
2.1
|
|
|
"Determination
Date"
|
4.5
|
|
|
"Distributed
Securities"
|
4.5
|
|
|
"Event
of Default"
|
7.1
|
|
|
"Excluded
Holder"
|
5.8
|
|
|
"Excluded
Taxes"
|
5.8
|
|
|
"Expiration
Date"
|
4.5
|
|
|
"Expiration
Time"
|
4.5
|
|
|
"Make
Whole Premium"
|
4.1
|
|
|
"Market
Price"
|
4.5
|
|
|
"Maturity
Notice"
|
3.16
|
|
|
"Notice
of Default"
|
7.1
|
|
|
"Notice
of Election"
|
3.8
|
|
|
"Paying
Agent"
|
2.5
|
|
|
"Primary
Registrar"
|
2.5
|
|
|
"Public
Acquisition Notice"
|
3.9
|
|
|
"Purchased
Shares"
|
4.5
|
|
|
"Purchases"
|
4.5
|
|
|
"Put
Right Purchase Date"
|
3.14
|
|
|
"Put
Right Purchase Notice"
|
3.14
|
|
|
"Put
Right Purchase Price"
|
3.14
|
|
|
"record
date"
|
4.5
|
|
|
"QIB"
|
2.1
|
|
|
"Receiver"
|
7.1
|
|
|
"Redemption
Notice"
|
3.3
|
|
|
"Registrar"
|
2.5
|
|
|
"Restrictive
Legend"
|
2.14
|
|
|
"Rights"
|
4.5
|
|
|
"Rights
Plan"
|
4.5
|
|
|
"Share
Change of Control Right"
|
3.13
|
|
|
"Share
Maturity Right"
|
3.16
|
|
|
"Share
Put Right"
|
3.15
|
|
|
"Share
Redemption Right"
|
3.6
|
|
|
"Spinoff
Securities"
|
4.5
|
|
|
"Spinoff
Valuation Period"
|
4.5
|
|
|
"tender
offer"
|
4.5
|
|
|
"tendered
Shares"
|
4.5
|
|
|
"Triggering
Distribution"
|
4.5
|
|
|
"Underwriting
Agreement"
|
2.1
|
|
|
-10-
|
1.3
|
Rules of
Construction.
|
|||
|
(a)
|
Unless
the context otherwise requires:
|
|||
|
(1)
|
a
term has the meaning assigned to it;
|
|||
|
(2)
|
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with Canadian GAAP;
|
|||
|
(3)
|
words
in the singular include the plural, and words in the plural include the
singular;
|
|||
|
(4)
|
all
references to "dollars" and "$" are to lawful money of
Canada;
|
|||
|
(5)
|
provisions
apply to successive events and transactions;
|
|||
|
(6)
|
the
term "merger" includes a statutory share exchange and the term "merged"
has a correlative meaning;
|
|||
|
(7)
|
the
masculine gender includes the feminine and the neuter;
|
|||
|
(8)
|
references
to agreements and other instruments include subsequent amendments thereto;
and
|
|||
|
(9)
|
all
"Article", "Exhibit" and "Section" references are to Articles, Exhibits
and Sections, respectively, of or to this Indenture unless otherwise
specified herein, and the terms "herein," "hereof" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other
subdivision.
|
|||
ARTICLE
II
THE
SECURITIES
|
2.1
|
Form and
Dating.
|
The
Securities and the Trustee's certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit
is incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange, automated
quotation system or depository rule or regulation or usage. The Company shall
provide any such notations, legends or endorsements to the Trustee in writing.
Each Security shall be dated the date of its authentication. The Securities are
being offered and sold by the Company pursuant to an Underwriting Agreement
dated March 29, 2005 (the "Underwriting Agreement") among
the Company and the Initial Purchasers, in Canada, pursuant to the Prospectus,
and, in Canada and elsewhere, in transactions exempt from, or not subject to,
the registration requirements of the Securities Act.
|
(a)
|
Restricted Global
Securities. Securities shall be offered and sold to qualified
institutional buyers as defined in Rule 144A (collectively, "QIBs" or individually,
each a "QIB") in
reliance on Rule 144A under
the
|
-11-
|
Securities
Act and shall be issued initially in the form of one or more Restricted
Global Securities, which, on behalf of the purchasers of the Securities
represented thereby by the Trustee, shall be deposited with The Canadian
Depository for Securities Limited ("CDS", and such
depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and
registered in the name of its nominee, CDS&Co. (or any successor
thereto), for the accounts of participants in the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global
Securities may from time to time be increased or decreased by notations
made on the Global Security by the Trustee, subject in each case to
compliance with the Applicable Procedures.
|
|||
|
(b)
|
Unrestricted
Global Securities. Securities offered and sold in Canada pursuant
to the Prospectus, and, in Canada and elsewhere, in accordance with
Regulation S to persons other than QIBs, shall be issued initially in the
form of one or more Unrestricted Global Securities, which, on behalf of
the purchasers of the Securities represented
thereby by the Trustee, shall be deposited with the Depositary, and
registered in the name of its nominee, CDS&Co. (or any successor
thereto), for the accounts of participants in the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Unrestricted Global
Securities may from time to time be increased or decreased by notations
made on the Global Security by the Trustee, subject in each case to
compliance with the Applicable Procedures.
|
||
|
(c)
|
Global Securities In
General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate
amount of outstanding Securities represented thereby may from time to time
be reduced or increased, as appropriate, to reflect replacements,
exchanges, purchases, redemptions, or conversions of such Securities. Any
adjustment of the aggregate principal amount of a Global Security to
reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by
Section 2.14 and shall be made on the records of the Trustee and the
Depositary.
|
||
|
Members
of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or under the Global Security, and
the Depositary (including, for this purpose, its nominee) may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the
|
|||
-12-
|
foregoing,
nothing herein shall (1) prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
(2) impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of
any Security.
|
|||
|
(d)
|
Book Entry
Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(d), authenticate and deliver
initially one or more Global Securities that (1) shall be registered in
the name of the Depositary or its nominee, (2) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions and
(3) shall bear legends substantially to the following effect:
|
||
|
"UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
CANADIAN DEPOSITORY FOR SECURITIES LIMITED ("CDS") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF
CDS&CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS&CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CDS&CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
|
|||
|
2.2
|
Execution and
Authentication.
|
||
|
(a)
|
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $330,000,000, except as
provided in Sections 2.8 and
2.9.
|
||
-13-
|
(b)
|
An
Officer shall sign the Securities for the Company by manual or facsimile
signature. Typographic and other minor errors or defects in any such
facsimile signature shall not affect the validity or enforceability of any
Security that has been authenticated and delivered by the
Trustee.
|
||
|
(c)
|
If
an Officer whose signature is on a Security no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
|
||
|
(d)
|
A
Security shall not be valid until an authorized signatory of the Trustee
by manual or facsimile signature signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
|
||
|
(e)
|
The
Trustee shall authenticate and make available for delivery Securities for
original issue in the aggregate principal amount of up to $330,000,000
upon receipt of a written order or orders of the Company signed by an
Officer of the Company (a "Company Order"). The
Company Order shall specify the principal amount of Securities to be
authenticated, shall provide that all such Securities will, on an
aggregate basis, be represented by a Restricted Global Security and an
Unrestricted Global Security, and shall further specify the principal
amount of Securities to be initially represented by the Restricted Global
Security and the Unrestricted Global Security, respectively, and the date
on which each original issue of Securities is to be
authenticated.
|
||
|
(f)
|
The
Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent shall have the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
|
||
|
(g)
|
The
Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 principal amount and any integral multiple
thereof.
|
||
|
2.3
|
No Notice of
Trusts
|
||
Neither
the Company nor the Trustee shall be bound to take notice of or see to the
execution of any trust (other than that created by this Indenture) whether
express, implied or constructive, in respect of any Security, and may transfer
the same on the direction of the person registered as the holder thereof,
whether named as trustee or otherwise, as though that person were the beneficial
owner thereof.
-14-
|
2.4
|
Ownership of
Securities.
|
||
|
(a)
|
Unless
otherwise required by law, the person in whose name any registered
Security is registered shall for all the purposes of this Indenture be and
be deemed to be the owner thereof and payment of or on account of the
principal of, interest, and premium, if any, on such Security and shall be
made to such registered Holder.
|
||
|
(b)
|
Where
Securities are registered in more than one name, the principal, interest
and premium, if any, from time to time payable in respect thereof may be
paid to the order of all such Holders, failing written instructions from
them to the contrary, and the receipt of any one of such Holders therefor
shall be a valid discharge, to the Trustee and to the
Company.
|
||
|
(c)
|
In
the case of the death of one or more joint holders of any Security the
principal, interest and premium, if any, from time to time payable thereon
may be paid to the order of the survivor or survivors of such registered
holders and the receipt of any such survivor or survivors therefor shall
be a valid discharge to the Trustee and to the Company.
|
||
|
(d)
|
The
Trustee may assume for the purposes of this Indenture that any address of
the holder appearing in the register maintained by the Trustee is the
Holder’s actual address.
|
||
|
2.5
|
Registrar, Paying
Agent and Conversion Agent.
|
||
|
(a)
|
The
Company shall maintain one or more offices or agencies where Securities
may be presented for registration of transfer or for exchange (each, a
"Registrar"), one
or more offices or agencies where Securities may be presented for payment
(each, a "Paying
Agent"), one or more offices or agencies where Securities may be
presented for conversion (each, a "Conversion Agent") and
one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent,
Registrar and offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served in
the Cities of Montreal, Toronto, Vancouver, Calgary Winnipeg and Halifax.
One of the Registrars (the "Primary Registrar")
shall keep a register of the Securities and of their transfer and
exchange.
|
||
|
(b)
|
The
Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, provided that the Agent may be an Affiliate
of the Trustee. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee
in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent, or agent for service of notices and demands
in
|
||
-15-
|
any
place required by this Indenture, or fails to give the foregoing notice,
the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Section 5.1 and
Article IX).
|
|||
|
(c)
|
The
Company hereby initially designates the Trustee as Paying Agent, Registrar
and Conversion Agent and designates the Corporate Trust Office of the
Trustee and the offices of the Trustee in the Cities of Montreal, Toronto,
Vancouver, Calgary, Winnipeg and Halifax, which offices at the date of the
execution of this Indenture are located at (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇; (ii) ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; (iii) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; (iv) ▇▇▇-▇▇▇ ▇▇▇▇▇▇
▇.▇., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; (v) ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; and (vi) ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ as the Corporate Trust
Offices.
|
||
|
2.6
|
Paying Agent to Hold
Money in Trust.
|
||
Prior
to 11:00 a.m., Toronto time, on each due date of the payment in cash of
principal of, or interest on, any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest so becoming due. Subject to
Section 9.2, a Paying Agent shall hold in trust for the benefit of Holders
of Securities or the Trustee all money held by the Paying Agent for the payment
of principal of, or interest on, the Securities, and shall notify the Trustee in
writing of any failure by the Company (or any other obligor on the Securities)
to make any such payment. If the Company or an Affiliate of the Company acts as
Paying Agent, it shall, before 11:00 a.m., Toronto time, on each due date of the
principal of, or interest on, any Securities, segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee, and the Trustee may at any time during the
continuance of any Default, upon written request to a Paying Agent, require such
Paying Agent to pay forthwith to the Trustee all sums so held in trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the Company) shall
have no further liability for the money.
In
respect to the payment of principal, together with accrued and unpaid interest
thereon, the Company may elect to satisfy its obligation to pay such principal
and interest, in whole or in part, by delivering Shares, as provided for, and
subject to the conditions, in this Indenture.
|
2.7
|
Lists of Holders of
Securities.
|
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of
Securities. If the Trustee is not the Primary Registrar, the Company shall
furnish to the Trustee on or before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders
of Securities.
-16-
|
2.8
|
Transfer and
Exchange.
|
||
|
(a)
|
Subject
to compliance with any applicable additional requirements contained in
Section 2.14, when a Security is presented to a Registrar with a
request to register a transfer thereof or to exchange such Security for an
equal principal amount of Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested; provided, however, that every Security presented or surrendered
for registration of transfer or exchange shall be duly endorsed or
accompanied by an assignment form and, if applicable, a transfer
certificate each in the form included in Exhibit A, and completed in
a manner satisfactory to the Registrar and duly executed by the Holder
thereof or its attorney duly authorized in writing. To permit registration
of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained
pursuant to Section 2.5, the Company shall execute and the Trustee
shall authenticate Securities of a like aggregate principal amount at the
Registrar's request. Any exchange or transfer shall be without charge,
except that the Company or the Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply
to any exchange pursuant to Section 2.12, 2.14, 3.7, 3.16, 3.17,
4.2(d) or 10.4.
|
||
|
(b)
|
Neither
the Company, any Registrar nor the Trustee shall be required to exchange
or register a transfer of (1) any Securities for a period of 15 days
next preceding mailing of a notice of Securities to be redeemed, (2) any
Securities or portions thereof selected or called for redemption (except,
in the case of redemption of a Security in part, the portion thereof not
to be redeemed), (3) any Securities or portions thereof in respect of
which a Change of Control Repurchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a
Security in part, the portion thereof not to be purchased) or (4) any
Securities or portions thereof in respect of which a Put Right Purchase
Notice has been delivered and not withdrawn by the Holder thereof (except,
in the case of the purchase of a Security in part, the portion thereof not
to be purchased).
|
||
|
(c)
|
All
Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
|
||
|
(d)
|
Any
Registrar appointed pursuant to Section 2.5 shall provide to the
Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer
or exchange of Securities.
|
||
-17-
|
(e)
|
The
Trustee shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Agent
Members or other beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
|
||
|
2.9
|
Replacement
Securities.
|
||
|
(a)
|
If
any mutilated Security is surrendered to the Company, a Registrar or the
Trustee, and the Company, a Registrar and the Trustee receive evidence to
their satisfaction of the ownership, destruction, loss or theft of any
Security, and there is delivered to the Company, the applicable Registrar
and the Trustee such security or indemnity as will be required by each of
them to save each of them harmless, then, in the absence of notice to the
Company, such Registrar or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
|
||
|
(b)
|
If
any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, or is about to be purchased or redeemed
by the Company pursuant to Article III, or converted pursuant to Article
IV, the Company in its discretion may, instead of issuing a new Security,
pay, redeem, purchase or convert such Security, as the case may
be.
|
||
|
(c)
|
Upon
the issuance of any new Securities under this Section 2.9, 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 reasonable expenses (including the reasonable fees and expenses of
the Trustee or the Registrar) in connection therewith.
|
||
|
(d)
|
Every
new Security issued pursuant to this Section 2.9 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
|
||
-18-
|
(e)
|
The
provisions of this Section 2.9 are (to the extent lawful) 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.
|
||
|
2.10
|
Outstanding
Securities.
|
||
|
(a)
|
Securities
outstanding at any time are all Securities authenticated by the Trustee,
except for those cancelled by it, those redeemed or purchased pursuant to
Article III, those converted pursuant to Article IV, those delivered to
the Trustee for cancellation or surrendered for transfer or exchange and
those described in this Section 2.10 as not outstanding.
|
||
|
(b)
|
If
a Security is replaced pursuant to Section 2.9, it ceases to be
outstanding.
|
||
|
(c)
|
If
a Paying Agent (other than the Company or an Affiliate of the Company)
holds in respect of the outstanding Securities on a Redemption Date, a
Change of Control Repurchase Date, a Put Right Purchase Date, or the Final
Maturity Date money sufficient to pay the principal of (including premium,
if any) and accrued interest on Securities (or portions thereof, as the
case may be) payable on that date, then on and after such Redemption Date,
Change of Control Repurchase Date, Put Right Purchase Date, or Final
Maturity Date, as the case may be, such Securities (or portions thereof,
as the case may be) shall cease to be outstanding and cash interest on
them shall cease to accrue; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision thereof satisfactory to the Trustee has been
made.
|
||
|
(d)
|
Any
Securities issued pursuant to this Indenture shall be cancelled by the
Company upon their purchase, redemption or conversion.
|
||
|
2.11
|
Concurrence in any
Notice, Direction, Waiver or
Consent.
|
||
In
determining whether the Holders of the required principal amount of Securities
have concurred in any notice, direction, waiver or consent, Securities owned by
the Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for purposes
of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities which a Trust Officer of
the Trustee with responsibility for this Indenture actually knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Securities and
that the pledgee is not the Company or any other obligor on the Securities or
any Affiliate of the Company or of such other obligor.
-19-
|
2.12
|
Temporary
Securities.
|
Until
definitive Securities are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate
and deliver, temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
with the consent of the Trustee considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary
Securities.
|
2.13
|
Cancellation.
|
The
Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange,
redemption, purchase, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with
its customary procedures or deliver the cancelled Securities to the Company. All
Securities which are redeemed, purchased or otherwise acquired by the Company or
any of its Subsidiaries prior to the Final Maturity Date pursuant to Article III
shall be delivered to the Trustee for cancellation, and the Company may not hold
or resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to Article
IV.
|
2.14
|
Legend; Additional
Transfer and Exchange Requirements.
|
||
|
(a)
|
A
Global Security may not be transferred, in whole or in part, to any Person
other than the Depositary or a nominee or any successor thereof, and no
such transfer to any such other Person may be registered; provided that
the foregoing shall not prohibit any transfer of a Security that is issued
in exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global
Security, in whole or in part, shall be made only in accordance with this
Section 2.14.
|
||
|
(b)
|
Upon
the transfer, exchange or replacement of Securities not bearing the
Restrictive Legend, the Registrar shall deliver Securities that do not
bear the Restrictive Legend.
|
||
|
(c)
|
Subject
to Section 2.14(a), every Restricted Security shall be subject to the
restrictions on transfer provided in the following legend (the "Restrictive Legend")
until after the later of (i) the second anniversary after the later of the
last Original Issue Date (which would include the exercise of the
over-allotment option) and the last date on which the Company or any
U.S.
|
||
-20-
|
Affiliate
was the owner of such Security (or any predecessor of the Security) or
such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder, and (ii) such later
date, if any, as may be required by applicable law.
|
||||
|
THIS
SECURITY AND THE SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"U.S. SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE ACQUIROR
|
||||
|
(1)
|
REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A "QUALIFIED
INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE U.S.
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH
RESPECT TO EACH SUCH ACCOUNT;
|
|||
|
(2)
|
AGREES
FOR THE BENEFIT OF THE CORPORATION THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, PRIOR
TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE LAST
ORIGINAL ISSUE DATE HEREOF (WHICH WOULD INCLUDE THE EXERCISE OF THE
OVERALLOTMENT OPTION) AND THE LAST DATE ON WHICH THE CORPORATION OR ANY
AFFILIATE OF THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(K) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW, EXCEPT ONLY:
|
|||
|
(A)
|
TO
THE CORPORATION OR ANY SUBSIDIARY THEREOF;
|
|||
|
(B)
|
PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE U.S.
SECURITIES ACT;
|
|||
|
(C)
|
TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
U.S. SECURITIES ACT;
|
|||
|
(D)
|
IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE U.S. SECURITIES ACT; OR
|
|||
|
(E)
|
PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE U.S.
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM
THE
|
|||
-21-
|
REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT.
|
|||
|
FOR
ANY TRANSFER IN ACCORDANCE WITH 2(D) ABOVE, THE LEGEND MAY BE REMOVED BY
PROVIDING A DULY COMPLETED AND SIGNED CERTIFICATE, THE FORM OF WHICH MAY
BE OBTAINED FROM CIBC MELLON TRUST COMPANY (THE "TRUSTEE"), TO THE
TRUSTEE. FOR ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE LEGEND MAY
BE REMOVED BY DELIVERY TO THE TRUSTEE OF AN OPINION OF COUNSEL, OF
RECOGNIZED STANDING REASONABLY SATISFACTORY TO THE CORPORATION, TO THE
EFFECT THAT SUCH LEGEND IS NO LONGER REQUIRED UNDER APPLICABLE
REQUIREMENTS OF THE U.S. SECURITIES ACT OR STATE SECURITIES
LAWS.
|
|||
|
Whenever
any Restricted Security other than a Restricted Global Security is
presented or surrendered for registration of transfer or in exchange for a
Security registered in a name other than that of the Holder pursuant to
Sections 2.14(d), (e), (f), (g) or (h) below, such Security must be
accompanied by a certificate in substantially the form set forth in
Exhibit A, dated the date of such surrender and signed by the Holder
of such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of
transfer or exchange any Security not so accompanied by a properly
completed certificate.
|
|||
|
Upon
the transfer, exchange or replacement of Securities bearing the
Restrictive Legend, the Registrar shall deliver only Securities that bear
the Restrictive Legend, unless (i) such Security has been sold pursuant to
an effective registration statement under the Securities Act in accordance
with Section 2.14(d) below, (ii) such Security has been sold in an
offshore transaction in compliance with Rule 904 of Regulation S
under the Securities Act in accordance with Section 2.14(f) below, (iii)
the requested transfer is completed after the second anniversary of the
last Original Issue Date, in accordance with Section 2.14(g) below, or
(iv) the requested transfer has been made pursuant to any other available
exemption from the registration requirements of the Securities Act in
accordance with Section 2.14(h) below in which case the Registrar shall
deliver Securities that are not Restricted Securities and that do not bear
the Restrictive Legend.
|
|||
|
If
the conditions provided in Sections 2.14(d), (e), (f), (g) or
(h) below are met, and the proposed transferor is an Agent
Member seeking to transfer or exchange an interest in a Restricted Global
Security to a transferee who will hold such interest in a Unrestricted
Global Security, upon receipt by the Registrar of (x) written instructions
given in accordance with the Applicable Procedures and the Registrar's
procedures and (y) the certificate required by the applicable
above-mentioned Sections, the Registrar shall register the transfer or
exchange and reflect on its books and records the date and (A) a decrease
in the aggregate principal amount of the Restricted Global Security
through which the transferor
|
|||
-22-
|
held
such interest in an amount equal to the aggregate principal amount of the
Securities to be transferred and (B) an increase in the aggregate
principal amount of the Unrestricted Global Security through which the
transferee proposes to hold such interest, in an amount equal to the
aggregate principal amount of the Securities to be
transferred.
|
|||
|
(d)
|
Upon
the transfer or exchange of Securities bearing the Restrictive Legend, the
Registrar shall deliver Securities that do not bear the Restrictive Legend
where such Securities have been sold or exchanged pursuant to an effective
registration statement under the Securities Act and the Holder selling
such Securities has delivered to the Registrar a certificate substantially
in the form set forth in Exhibit A hereto and has made the representations
contained in Item 2 thereof.
|
||
|
(e)
|
The
Registrar shall register the transfer or exchange of any Restricted
Security, whether or not such Security bears the Restrictive Legend, if
the Security is being transferred or exchanged to a QIB in compliance with
Rule 144A (or any successor provision thereto), provided that such
transfer is being made by a proposed transferor who has delivered to the
Company and the Registrar a certificate substantially in the form set
forth in Exhibit A hereto and has made the representations contained in
Item 3 thereof.
|
||
|
(f)
|
The
Registrar shall register the transfer of any Restricted Security, whether
or not such Security bears the Restrictive Legend, if the Security is
being transferred or exchanged pursuant to Rule 904 of
Regulation S (or any successor provision thereto), provided that such
transfer is being made by a proposed transferor who has delivered to the
Registrar a certificate substantially in the form set forth in Exhibit A
hereto and has made the representations contained in Item 4
thereof.
|
||
|
(g)
|
The
Registrar shall register the transfer or exchange of any Restricted
Security, whether or not such Security bears the Restrictive Legend, if
the Security is being transferred or exchanged pursuant to
Rule 144(k) (or any successor provision thereto), provided that (A)
the requested transfer or exchange is after a date that is the later of
(1) two years after the later of the last Original Issue Date of such
Security (which would include the exercise of the overallotment option)
and the last date on which the Company or any U.S. Affiliate was the owner
of such Security (or any predecessor of the Security) or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder, and (2) such later date, if any, as may be
required by applicable law; and (B) the proposed transferor has delivered
to the Registrar (1) a certificate substantially in the form set forth in
Exhibit A hereto and has made the representations contained in Item 5
thereof or (2) such other documentation reasonably satisfactory to the
Company to the effect that the requested transfer is permitted under
Rule 144(k).
|
||
-23-
|
(h)
|
The
Registrar shall register the transfer or exchange of any Restricted
Security, whether or not such Security bears the Restrictive Legend, if
the Security is being transferred or exchanged pursuant to, and in
accordance with, an exemption from registration provided by Rule 144
under the Securities Act (other than Rule 144(k)) or any other
available exemption from the registration requirements of the Securities
Act, provided (A) the proposed transferor has delivered to the Registrar a
certificate substantially in the form set forth in Exhibit A hereto and
has made the representations contained in Item 6 thereto; and
(B) the transferor has furnished to the Registrar and the Company an
Opinion of Counsel, of recognized standing reasonably satisfactory to the
Company, to the effect that the Restrictive Legend is no longer required
under applicable requirements of the Securities Act.
|
|||
|
As
used in Sections 2.14(b) through (h), the term "transfer" encompasses
any sale, pledge, transfer, hypothecation or other disposition of any
Security.
|
||||
|
(i)
|
The
provisions below shall apply only to Global Securities:
|
|||
|
(i)
|
Each
Global Security authenticated under this Indenture shall be registered in
the name of the Depositary or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for purposes of this
Indenture.
|
|||
|
(ii)
|
Notwithstanding
any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security
registered, and no transfer of a Global Security in whole or in part shall
be registered in the name of any Person other than the Depositary or one
or more nominees thereof; provided that a Global Security may be exchanged
for Securities registered in the names of any person designated by the
Depositary in the event that (A) the Depositary has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a clearing agency or
otherwise ceases to be eligible to be a depository, and a successor
Depositary is not appointed by the Company within 90 days after
receiving such notice or becoming aware that the Depositary has ceased to
be a clearing agency or otherwise ceases to be eligible to be a depository
(B) the Company has determined, in its sole discretion, to terminate the
book-entry only registration system in respect of such Global Security and
has communicated such determination to the Trustee in writing or
(C) an Event of Default has occurred and is continuing with respect
to the Securities. Any Global Security exchanged pursuant to
subclause (A) or (B) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant
to
|
|||
-24-
|
subclause (C)
above may be exchanged in whole or from time to time in part as directed
by the Depositary. Any Security issued in exchange for a Global Security
or any portion thereof shall be a Global Security; provided further that
any such Security so issued that is registered in the name of a Person
other than the Depositary or a nominee thereof shall not be a Global
Security.
|
||||
|
(iii)
|
Securities
issued in exchange for a Global Security or any portion thereof shall be
issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any
Global Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any Global
Security to be exchanged in part, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by
means of a notation made on the Global Security as authenticated by the
Trustee and an appropriate adjustment made on the records of the
Depository and the Trustee.
|
|||
|
(iv)
|
Subject
to clause (vi) of this Section 2.14(i), the registered Holder
may grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the
Securities.
|
|||
|
(v)
|
In
the event of the occurrence of any of the events specified in
clause (ii) of this Section 2.14(i), the Company will promptly
make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest
coupons.
|
|||
|
(vi)
|
Neither
Agent Members nor any other Persons on whose behalf Agent Members may act
shall have any rights under this Indenture with respect to any Global
Security registered in the name of the Depositary or any nominee thereof,
or under any such Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any Agent
of the Company or the Trustee as the absolute owner and holder of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
Agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
such nominee, as the case may be, or impair, as between the Depositary,
its
|
-25-
|
Agent
Members and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of
the rights of a Holder of any Security.
|
||||
|
(vii)
|
At
such time as all interests in a Global Security have been redeemed,
converted, cancelled or exchanged for Securities in certificated form,
such Global Security shall, upon receipt thereof, be cancelled by the
Trustee in accordance with Applicable Procedures and instructions existing
between the Depositary and the Trustee, subject to Section 2.13 of
this Indenture. At any time prior to such cancellation, if any interest in
a Global Security is redeemed, converted, cancelled or exchanged for
Securities in certificated form, the principal amount of such Global
Security shall, in accordance with the Applicable Procedures and
instructions existing between the Depositary and the Trustee, be
appropriately reduced, and an endorsement shall be made on such Global
Security, by the Trustee to reflect such reduction.
|
|||
|
(j)
|
Until
a date that is the later of (A) two years after the later of the last
Original Issue Date hereof (which would include the exercise of the
overallotment option) and the last date on which the Company or any U.S.
Affiliate was the owner of the Security (or any predecessor of the
Security) or such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder, and (B) such
later date, if any, as may be required by applicable law, any share
certificate representing Shares issued upon conversion of any Security
that bears a Restrictive Legend shall bear a restrictive legend in
substantially the following form, unless such Shares have been sold
pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time
of such transfer) or transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto), or such Shares
have been issued upon conversion of Securities that have been transferred
pursuant to a registration statement that has been declared effective
under the Securities Act and the requirements set forth in Section 2.14(d)
above have been met, or pursuant to Rule 144 under the Securities Act
(or any successor provision thereto), provided that the requirements of
Sections 2.14(g) or (h) above have been met, or unless otherwise agreed by
the Company in writing with written notice thereof to the transfer
agent:
|
|||
|
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "U.S. SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY
|
||||
-26-
|
ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIROR
|
|||||
|
(1)
|
REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A "QUALIFIED
INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE U.S.
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH
RESPECT TO EACH SUCH ACCOUNT;
|
||||
|
(2)
|
AGREES
FOR THE BENEFIT OF THE CORPORATION THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, PRIOR
TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE LAST
ORIGINAL ISSUE DATE HEREOF (WHICH WOULD INCLUDE THE EXERCISE OF THE
OVERALLOTMENT OPTION) AND THE LAST DATE ON WHICH THE CORPORATION OR ANY
AFFILIATE OF THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(K) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW, EXCEPT ONLY:
|
||||
|
(A)
|
TO
THE CORPORATION OR ANY SUBSIDIARY THEREOF;
|
||||
|
(B)
|
PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFECTIVE UNDER THE U.S.
SECURITIES ACT;
|
||||
|
(C)
|
TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
U.S. SECURITIES ACT;
|
||||
|
(D)
|
IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE U.S. SECURITIES ACT; OR
|
||||
|
(E)
|
PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE U.S.
SECURITIES ACT OF ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT.
|
||||
|
FOR
ANY TRANSFER IN ACCORDANCE WITH 2(D) ABOVE, THE LEGEND MAY BE REMOVED BY
PROVIDING A DULY COMPLETED
|
|||||
-27-
|
AND
SIGNED CERTIFICATE, THE FORM OF WHICH MAY BE OBTAINED FROM CIBC MELLON
TRUST COMPANY (THE "TRANSFER AGENT"), TO THE TRANSFER AGENT, AND THE
CORPORATION AGREES TO CAUSE ITS COUNSEL TO DELIVER TO THE TRANSFER AGENT,
AT THE CORPORATION'S EXPENSE, SUCH LEGAL OPINIONS OR OTHER DOCUMENTATION
SATISFACTORY TO THE TRANSFER AGENT, TO THE EFFECT THAT SUCH LEGEND IS NO
LONGER REQUIRED UNDER APPLICABLE REQUIREMENTS OF THE U.S. SECURITIES ACT
FOR ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE LEGEND MAY BE
REMOVED BY DELIVERY TO THE TRANSFER AGENT OF AN OPINION OF COUNSEL, OF
REGOGNIZED STANDING REASONABLY SATISFACTORY TO THE CORPORATION, TO THE
EFFECT THAT SUCH LEGEND IS NO LONGER REQUIRED UNDER APPLICABLE
REQUIREMENTS OF THE U.S. SECURITIES ACT OR STATE SECURITIES
LAWS.
|
|||
|
provided
that if the Shares are being sold in accordance with Rule 904 of
Regulation S, the restrictive legend may be removed by providing a
duly completed and signed certificate, the form of which may be obtained
from the Registrar, to the Registrar and the Company, upon receipt of
which the Company has agreed to cause its counsel to deliver to the
Registrar, at the Company's expense, such legal opinions or other
documentation satisfactory to the Registrar, to the effect that such
restrictive legend is no longer required under applicable requirements of
the Securities Act; and provided further that, if any such securities are
being sold pursuant to an exemption from registration provided by
Rule 144 under the Securities Act or any other available exemption
from the registration requirements of the Securities Act, the restrictive
legend may be removed by delivery to the Trustee, as registrar and
transfer agent of the Securities, an Opinion of Counsel, of recognized
standing reasonably satisfactory to the Company, to the effect that the
restrictive legend is no longer required under the applicable requirements
of the Securities Act or state securities laws. Provided that
the Trustee obtains confirmation from the Company that such Counsel is
satisfactory to it, it shall be entitled to rely on such Opinion of
Counsel without further inquiry.
|
|||
|
2.15
|
CUSIP and/or ISIN
Numbers.
|
||
The
Company in issuing the Securities may use one or more "CUSIP" and/or ISIN
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
and/or ISIN numbers in notices of redemption or purchase as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption or purchase and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption or purchase shall not be affected by any defect in or
omission of such
-28-
numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP" and/or
ISIN numbers.
|
2.16
|
Computation of
Interest.
|
Interest
on the Securities shall be computed by the Company on the basis of a 360-day
year composed of twelve 30-day months. Each rate of interest which is calculated
with reference to a period (the "Deemed Interest Period") that
is less than the actual number of days in the calendar year of calculation is,
for the purposes of the Interest Act (Canada),
equivalent to an annual rate based on a calendar year calculated by multiplying
such rate by the actual number of days in the calendar year in which the Deemed
Interest Period ends and dividing by 360. The amount of interest payable for any
period shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in the
period.
ARTICLE
III
REDEMPTION
AND PURCHASE
|
3.1
|
To Redeem; Notice to
Trustee.
|
||
|
(a)
|
Except
as provided for under Section 3.8, prior to June 6, 2008, the
Securities shall not be redeemable. On or after June 6, 2008, the Company
may, at its option, redeem the Securities for cash at the Redemption
Price, as a whole at any time or from time to time in part, on any
Redemption Date (or in the case of multiple redemptions, Redemption Dates)
fixed by the Company. If a Redemption Date falls after a Regular Record
Date and on or before the related Interest Payment Date, then interest on
the Securities payable on such Interest Payment Date will instead be
payable on such Interest Payment Date to the Holders in whose names the
Securities are registered at the close of business on such Regular Record
Date. The Company may elect to satisfy its obligation to pay the
Redemption Price, in whole or in part, by delivering Shares, as provided
for, and subject to the conditions, under Section 3.6.
|
||
|
(b)
|
If
the Company elects to redeem Securities pursuant to this Section 3.1,
it shall notify the Trustee, on a date at least 30 days and no more
than 60 days prior to the applicable Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), of the Redemption
Date and the principal amount of Securities to be redeemed. The record
date relating to a redemption shall be selected by the Company and given
to the Trustee and shall not be less than five days after the date of
notice to the Trustee.
|
||
|
3.2
|
Selection of
Securities to be Redeemed.
|
||
|
(a)
|
If
less than all of the Securities are to be redeemed, unless the Applicable
Procedures specify otherwise, the Trustee shall select the Securities to
be redeemed within five Business Days after it receives the notice
described in Section 3.1(b). The Trustee shall make the selection
from the Securities outstanding and not previously called for redemption
by lot, or in its
|
||
-29-
|
discretion,
on a pro rata basis or by another method that the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of
any stock exchange or market on which the Securities are listed).
Securities in denominations of $1,000 principal amount may only be
redeemed in whole. The Trustee may select for redemption portions (equal
to $1,000 principal amount or any integral multiple thereof) of the
principal amount of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
|
||||
|
(b)
|
If
any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be
deemed (up to the amount of the redemption) to be the portion selected for
redemption. Securities which have been converted subsequent to the Trustee
commencing selection of Securities to be redeemed but prior to redemption
of such Securities shall be treated by the Trustee as outstanding for the
purpose of such selection.
|
|||
|
(c)
|
In
the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange any Security during a
period beginning at the opening of business 15 days before any
selection of Securities for redemption and ending at the close of business
on the earliest date on which the relevant Redemption Notice is deemed to
have been given to all Holders of Securities to be redeemed, or
(ii) register the transfer or exchange of any Security so selected
for redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
|
|||
|
3.3
|
Redemption
Notice.
|
|||
|
(a)
|
Subject
to Section 3.8, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption to each Holder of Securities (and to beneficial
owners as required by applicable law) to be redeemed at such Holder's
address as it appears on the Registrar's books (the "Redemption
Notice").
|
|||
|
(b)
|
The
Redemption Notice shall identify the Securities (including CUSIP numbers)
to be redeemed and shall state:
|
|||
|
(1)
|
the
Redemption Date;
|
|||
|
(2)
|
the
Redemption Price and if payment, whether in whole or in part, will be made
in Shares;
|
|||
|
(3)
|
the
then effective Conversion Rate;
|
|||
-30-
|
(4)
|
the
name and address of each Paying Agent and Conversion Agent;
|
|||
|
(5)
|
that
Securities called for redemption must be presented and surrendered to a
Paying Agent to collect the Redemption Price;
|
|||
|
(6)
|
that
Holders who wish to convert Securities must surrender such Securities for
conversion no later than the close of business on the Business Day
immediately preceding the Redemption Date and must satisfy the other
requirements set forth in paragraph 12 of the Securities and Article
IV;
|
|||
|
(7)
|
that,
unless the Company has failed to make the payment of such Redemption Price
which is due and payable, interest will cease to accrue on and after the
Redemption Date;
|
|||
|
(8)
|
if
any Security is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and that, after the Redemption
Date, upon presentation and surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
|
|||
|
(9)
|
if
such Securities are being redeemed pursuant to Section 3.8, a description
of the procedures which a Holder must follow if it chooses to exercise its
right to not have its Securities redeemed;
|
|||
|
(10)
|
if
such Securities are being redeemed pursuant to Section 3.8, that Holders
will be entitled to withdraw their election to not have Securities
redeemed if the Company (if acting as its own Paying Agent), or the Paying
Agent, receives, not later than the close of business on the Business Day
immediately preceding the Redemption Date, a letter or telegram, telex or
facsimile transmission (receipt of which is confirmed and promptly
followed by a letter) setting forth the name of the Holder, and a
statement that such Holder is withdrawing its election to not have a
specified principal amount of Securities redeemed, the certificate numbers
of such Securities being withdrawn, if applicable, and the principal
amount, if any, of the Securities that remain subject to the Notice of
Election; and
|
|||
|
(11)
|
if
Certificated Securities have been issued and fewer than all the
outstanding Securities are to be redeemed, the certificate number and the
principal amounts of the particular Securities to be
redeemed.
|
|||
|
(c)
|
If
any of the Securities to be redeemed is in the form of a Global Security,
then the Company shall modify the Redemption Notice to the extent
necessary to accord with the procedures of the Depositary applicable to
redemptions. At the Company's written request, which request shall (1) be
irrevocable once given and (2) set forth all relevant
information
|
|||
-31-
|
required
by clauses (1) through (11) of Section 3.3(b), the Trustee shall
give the Redemption Notice to each Holder in the Company's name and at the
Company's expense; provided, however, that in all cases, the text of such
Redemption Notice shall be prepared by the Company; and provided further
that the Company must make such request at least five Business Days prior
to the date by which such Redemption Notice must be given to the Holders
in accordance with this Section 3.3.
|
|||
|
3.4
|
Effect of a Redemption
Notice.
|
||
Once
a Redemption Notice is mailed, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the notice,
except for (i) Securities that are converted on a Conversion Date prior to the
Redemption Date in accordance with the provisions of Article IV and (ii) if such
Securities are being redeemed pursuant to Section 3.8, Securities for which
a Holder has elected not to have its Securities redeemed pursuant to
Section 3.8. On or after the Redemption Date and upon presentation and
surrender to a Paying Agent, Securities called for redemption shall be paid in
cash at the Redemption Price, subject to the Company's right to pay the
Redemption Price, in whole or in part, by delivering Shares, as provided for,
and subject to the conditions, under Section 3.6.
|
3.5
|
Deposit of Redemption
Price.
|
||
|
(a)
|
Prior
to 11:00 a.m., Toronto time, on the Redemption Date, the Company shall
deposit with a Paying Agent (or, if the Company acts as Paying Agent,
shall segregate and hold in trust) an amount of money (in immediately
available funds if deposited on such Redemption Date) and/or, subject to
and in accordance with Section 3.6, a number of Shares sufficient to
pay the Redemption Price payable upon redemption on all Securities to be
redeemed on that date, other than Securities or portions thereof called
for redemption on that date which have been delivered by the Company to
the Trustee for cancellation or have been converted. The Paying Agent
shall as promptly as practicable return to the Company any funds and/or
Shares not required for that purpose or, if such funds and/or Shares are
then held by the Company in trust and are not required for such purpose,
they shall be discharged from the trust.
|
||
|
(b)
|
If
a Paying Agent holds, in accordance with the terms hereof, money and/or
Shares sufficient to pay the Redemption Price of any Security for which a
Redemption Notice has been tendered and not withdrawn in accordance with
this Indenture then, on the Redemption Date, such Security will cease to
be outstanding, whether or not the Security is delivered to the Paying
Agent, and the rights of the Holder in respect thereof shall terminate
(other than the right to receive the Redemption Price as
aforesaid).
|
||
|
(c)
|
No
Securities may be redeemed by the Company at the option of Holders if
there has occurred and is continuing an Event of Default with respect to
the Securities, other than a Default in the payment of the
Redemption
|
||
-32-
|
Price.
The Paying Agent will promptly return to the respective Holders thereof
any Securities held by it during the continuance of an Event of Default
(other than a failure to pay the applicable Redemption
Price).
|
|||
|
3.6
|
Right to Pay
Redemption Price in Shares.
|
||
|
(a)
|
Subject
to the other provisions of this Section 3.6, the Company may, at its
option, elect to satisfy its obligation to pay all or any portion of the
Redemption Price by issuing and delivering to Holders on the Redemption
Date that number of Shares obtained by dividing the Redemption Price, or
such portion thereof payable in Shares, as the case may be, by 95% of the
Current Market Price (the "Share Redemption
Right"). Holders who are Qualified Canadians will receive Voting
Shares and Holders who are not Qualified Canadians will receive Variable
Voting Shares.
|
||
|
(b)
|
The
Company shall exercise the Share Redemption Right by so specifying in the
Redemption Notice. The Redemption Notice shall also specify the portion of
the Redemption Price in respect of which the Company is exercising the
Share Redemption Right, if both cash and Shares are payable, the
percentage of each on a per Security basis and the method of calculating
the Current Market Price. When the Company determines the actual number of
Shares to be issued and delivered in accordance with the provisions of
this Section 3.6, it will issue a press release on a national
newswire and publish such information on its website.
|
||
|
The
Company may not change the form of components or percentages of
consideration set out in a Redemption Notice except with respect to the
payment of the Redemption Price in cash pursuant to the non-satisfaction
of the conditions under Section 3.6(d).
|
|||
|
(c)
|
Prior
to the issuance of Shares, the Trustee will provide the Holders of
Securities with a form of Residency Declaration and instructions with
respect to its completion and transmission to the Trustee. Each Holder of
Securities who is a Qualified Canadian is entitled to receive Voting
Shares upon the delivery to the Trustee of a duly completed Residency
Declaration to the effect that such Holder is a Qualified Canadian. Each
Holder of Securities who is not a Qualified Canadian is entitled to
receive Variable Voting Shares upon the delivery to the Trustee of a duly
completed Residency Declaration to the effect that such Holder is not a
Qualified Canadian. Anything herein to the contrary notwithstanding, in
the case of Global Securities, Residency Declarations may be delivered in
accordance with the Applicable Procedures. Holders of Securities who fail
to provide a duly completed Residency Declaration and who are not
otherwise determined to be Qualified Canadians by the Trustee will be
deemed not to be Qualified Canadians and will receive Variable Voting
Shares.
|
||
-33-
|
(d)
|
The
Company's right to exercise the Share Redemption Right shall be
conditional upon the following conditions being met on the Business Day
immediately preceding the Redemption Date:
|
|||
|
(i)
|
the
Shares to be issued on exercise of the Share Redemption Right shall be
qualified for distribution under applicable securities laws of each
province of Canada;
|
|||
|
(ii)
|
the
Shares to be issued on exercise of the Share Redemption Right shall be
listed on the TSX or a national securities exchange or quoted in an
inter-dealer quotation system of any registered national securities
association;
|
|||
|
(iii)
|
the
Company being a reporting issuer not in default of its reporting
obligations under applicable securities legislation where the distribution
of such Shares occurs;
|
|||
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|||
|
(v)
|
the
receipt by the Trustee of an Officer's Certificate stating that conditions
(i), (ii), (iii) and (iv) above have been satisfied and setting forth the
number of Shares to be issued and delivered for each $1,000 principal
amount of Securities and the Current Market Price used for calculating the
number of Shares to be issued and delivered to Holders for each $1,000
principal amount of Securities; and
|
|||
|
(vi)
|
the
receipt by the Trustee of an Opinion of Counsel to the effect that such
Shares have been duly authorized and, when issued and delivered pursuant
to the terms of this Indenture in payment (whether in whole or in part) of
the Redemption Price, will be validly issued as fully paid and
non-assessable, that conditions (i) and (ii) above have been satisfied and
that, relying exclusively on certificates of no default issued by the
relevant securities authorities, condition (iii) above is satisfied,
except that the opinion in respect of condition (iii) need not be
expressed with respect to those provinces where such certificates are not
issued.
|
|||
|
If
the foregoing conditions are not satisfied prior to the close of business
on the Redemption Date, the Company shall pay the Redemption Price in cash
in accordance with Section 3.5 unless each of the Holder and the
Company waives the conditions which are not satisfied.
|
||||
|
(e)
|
In
the event that the Company duly exercises its Share Redemption Right, upon
presentation and surrender of the Securities for payment on the Redemption
Date, at any place where a register is maintained pursuant to
Section 2.5 or any other place
specified in the Redemption Notice, the Company shall on or before 11:00
a.m. Toronto Time on the Redemption
|
|||
|
|
-34-
|
Date
make the delivery to the Trustee for delivery to and on account of the
Holders, of certificates representing the Shares to which such holders are
entitled.
|
|||
|
(f)
|
The
Company will not issue fractional Shares upon the exercise of the Share
Redemption Right. If more than one Security shall be surrendered for
redemption at one time by the same Holder, the number of full Shares that
shall be issuable upon redemption shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. In lieu of any
fractional Shares, the Company will pay to the Trustee for the account of
the Holders, at the time contemplated in Section 3.6(e), the cash
equivalent thereof (less any tax required to be deducted, if any)
determined for each Holder by subtracting from the Redemption Price a
number equal to the product obtained by multiplying the number of Shares
issued and delivered under this Section 3.6 by 95% of the Current
Market Price.
|
||
|
(g)
|
A
Holder shall be treated as the holder of record of the Shares issued on
due exercise by the Company of its Share Redemption Right effective
immediately after the close of business on the Redemption Date, and shall
be entitled to all substitutions therefor, all income earned thereon or
accretions thereto and all dividends or distributions (including dividends
or distributions in kind) thereon and arising thereafter, and in the event
that the Trustee receives the same, it shall hold the same for the benefit
of such Holder.
|
||
|
(h)
|
The
Company shall at all times reserve and keep available out of its
authorized Shares (if the number thereof is or becomes limited), solely
for the purpose of issue and delivery upon the exercise of the Share
Redemption Right as provided herein, and shall issue to Holders to whom
Shares will be issued pursuant to the exercise of the Share Redemption
Right, such number of Shares as shall be issuable in such event. All
Shares which shall be so issuable shall be duly and validly issued as
fully paid and non-assessable.
|
||
|
(i)
|
Each
certificate representing Shares issued in payment of the Redemption Price
of Securities bearing the restrictive legend set forth in
Section 2.14(j), as well as all certificates issued in exchange for
or in substitution of the foregoing securities shall bear the restrictive
legend set forth in Section 2.14(j); provided that if the Shares are
being sold in accordance with Rule 904 of Regulation S, the
restrictive legend may be removed by providing a duly completed and signed
certificate, the form of which may be obtained from the Registrar, to the
Registrar and the Company, upon receipt of which the Company has agreed to
cause its counsel to deliver to the Registrar, at the Company's expense,
such legal opinions or other documentation satisfactory to the Registrar,
to the effect that such
|
-35-
|
restrictive
legend is no longer required under applicable requirements of the
Securities Act; and provided further that, if any such securities are
being sold pursuant to an exemption provided by Rule 144 under the
Securities Act or any other available exemption from the registration
requirements of the Securities Act, the restrictive legend may be removed
by delivery to the Trustee, as registrar and transfer agent of the
Securities, an Opinion of Counsel, of recognized standing reasonably
satisfactory to the Company, to the effect that the restrictive legend is
no longer required under the applicable requirements of the Securities Act
or state securities laws. Provided that the Trustee obtains
confirmation from the Company that such Counsel is satisfactory to it, it
shall be entitled to rely on such Opinion of Counsel without further
inquiry.
|
|||
|
3.7
|
Securities Redeemed in
Part.
|
||
Upon
presentation and surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
|
3.8
|
Redemption for Tax
Reasons.
|
The
Company may at any time, at its option, redeem the Securities, in whole but not
in part, at the Redemption Price, if the Company has become or would become
obligated to pay to any of the Holders Additional Amounts (which are more than a
de minimus amount, as
determined by the Company, acting reasonably) as a result of any amendment or
change occurring after March 30, 2005 in the laws or any regulations of
Canada or any Canadian political subdivision or taxing authority, or any change
occurring after March 30, 2005 in the interpretation or application of any
such laws or regulations by any legislative body, court, governmental agency,
taxing authority or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory or
administrative determination); provided the Company cannot avoid these
obligations by taking reasonable measures available to it and that it delivers
to the Trustee an Opinion of Counsel specializing in taxation and an Officers'
Certificate attesting to such change and obligation to pay Additional Amounts.
The Company will not and will not cause any Paying Agent or the Trustee to
deduct from such Redemption Price any amounts on account of, or in respect of,
any Canadian Taxes other than Excluded Taxes (except in respect of certain
Excluded Holders). In such event, the Company will give the Trustee and the
Holders of the Securities notice of this redemption in accordance with the
notice requirements set forth in Section 3.3, except that (i) the Company
will not give a Redemption Notice earlier than 60 days prior to the earliest
date on or from which it would be obligated to pay any such Additional Amounts,
and (ii) at the time the Company gives the notice, the circumstances creating
its obligation to pay such Additional Amounts remain in effect. For greater
certainty, the Company may elect to satisfy its obligation to pay the Redemption
Price pursuant to this Section 3.8, in whole or in part, by delivering
Shares, as provided for, and subject to the conditions, under
Section 3.6.
Upon
receiving such Redemption Notice, each Holder who does not wish to have the
Company redeem its Securities pursuant to this Section 3.8 can elect to (i)
convert its Securities pursuant to Article IV or (ii) not have its Securities
redeemed, provided that no Additional
-36-
Amounts
will be payable by the Company on any payment of interest or principal with
respect to the Securities after such Redemption Date. All future payments will
be subject to the deduction or withholding of any Canadian Taxes required to be
deducted or withheld.
Where
no such election is made, the Holder will have its Securities redeemed without
any further action. If a Holder does not elect to convert its Securities
pursuant to Article IV but wishes to elect to not have its Securities redeemed
pursuant to clause (ii) of the preceding paragraph, such Holder must deliver to
the Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company for such purpose in the Redemption Notice, a
written Notice of Election upon Tax Redemption (the "Notice of Election") on the
back of the Securities, or any other form of written notice substantially
similar to the Notice of Election, in each case, duly completed and signed, so
as to be received by the Paying Agent no later than the close of business on a
Business Day at least five Business Days prior to the Redemption
Date.
A
Holder may withdraw any Notice of Election by delivering to the Company (if the
Company is acting as its own Paying Agent), or to a Paying Agent designated by
the Company in the Redemption Notice, a written notice of withdrawal prior to
the close of business on the Business Day immediately preceding the Redemption
Date.
|
3.9
|
Change of
Control.
|
|||
|
(a)
|
If
a Change of Control occurs prior to the Final Maturity Date (subject to
the Company's rights upon delivery of a Public Acquisition Notice as
defined in Section 3.9(f)), the Company shall offer (the "Change of Control Purchase
Offer") to purchase all of the outstanding Securities at the Change
of Control Repurchase Price on the date that is 30 Business Days
after the date of the Change of Control Company Notice pursuant to
subsection 3.9(b) (the "Change of Control Repurchase
Date").
|
|||
|
(b)
|
Subject
to Section 3.9(f)(A), on or before the 30th day
after the Company knows of the occurrence of a Change of Control, the
Company shall mail a written notice of the Change of Control setting out
the terms of the Change of Control Purchase Offer to the Trustee, Paying
Agent and to each Holder (and to beneficial owners as required by
applicable law) (the "Change of Control Company
Notice"). The Change of Control Company Notice shall include the
form of a Change of Control Repurchase Notice to be completed by the
Holder and shall state:
|
|||
|
(1)
|
the
events causing such Change of Control;
|
|||
|
(2)
|
the
date of such Change of Control;
|
|||
|
(3)
|
the
last date by which the Change of Control Repurchase Notice must be
delivered to accept the Change of Control Purchase Offer pursuant to this
Section 3.9;
|
|||
|
(4)
|
the
Change of Control Repurchase
Date;
|
|||
-37-
|
(5)
|
the
Change of Control Repurchase Price and if payment, whether in whole or in
part, will be made in Shares;
|
|||
|
(6)
|
the
Holder's right to accept the Change of Control Purchase
Offer;
|
|||
|
(7)
|
the
name and address of each Paying Agent and Conversion Agent;
|
|||
|
(8)
|
the
then effective Conversion Rate and any adjustments to the Conversion Rate
resulting from such Change of Control;
|
|||
|
(9)
|
the
procedures that the Holder must follow to exercise rights under Article IV
and that Securities as to which a Change of Control Repurchase Notice has
been given may be converted into Shares pursuant to Article IV of this
Indenture only to the extent that the Change of Control Repurchase Notice
has been withdrawn in accordance with the terms of this
Indenture;
|
|||
|
(10)
|
the
procedures that the Holder must follow to accept the Change of Control
Purchase Offer;
|
|||
|
(11)
|
the
procedures for withdrawing a Change of Control Repurchase
Notice;
|
|||
|
(12)
|
that,
unless the Company fails to pay such Change of Control Repurchase Price,
Securities covered by any Change of Control Repurchase Notice will cease
to be outstanding and interest will cease to accrue on and after the
Change of Control Repurchase Date; and
|
|||
|
(13)
|
the
CUSIP and/or ISIN number of the
Securities.
|
At
the Company's request, the Trustee shall give such Change of Control Company
Notice in the Company's name and at the Company's expense; provided, that, in
all cases, the text of such Change of Control Company Notice shall be prepared
by the Company. If any of the Securities is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord with
the Applicable Procedures relating to the purchase of Global
Securities.
|
(c)
|
A
Holder may exercise its rights specified in Section 3.9 upon delivery
of a written notice (which shall be in substantially the form attached as
Exhibit A under the heading "Change of Control Repurchase Notice" and
which may be delivered by letter, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of
Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) of the exercise of such rights
(a "Change of Control
Repurchase Notice") to the Company or any Paying Agent at any time
prior to the close of business on the
Business
|
-38-
|
Day
immediately preceding the Change of Control Repurchase Date, subject to
extension to comply with applicable law.
|
||||
|
(1)
|
The
Change of Control Repurchase Notice shall state: (A) the certificate
number (if such Security is held other than in global form) of the
Security which the Holder will deliver to be purchased (or, if the
Security is held in global form, any other items required to comply with
the Applicable Procedures), (B) the portion of the principal amount of the
Security which the Holder will deliver to be purchased and (C) that such
Security shall be purchased as of the Change of Control Repurchase Date
pursuant to the Change of Control Purchase Offer.
|
|||
|
(2)
|
The
delivery of a Security for which a Change of Control Repurchase Notice has
been timely delivered to any Paying Agent and not validly withdrawn prior
to the Change of Control Repurchase Date (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to
the receipt by the Holder of the Change of Control Repurchase Price
therefor.
|
|||
|
(3)
|
The
Company shall only be obliged to purchase, pursuant to this
Section 3.9, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000 (provisions of this
Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security).
|
|||
|
(4)
|
Notwithstanding
anything herein to the contrary, any Holder delivering to a Paying Agent
the Change of Control Repurchase Notice contemplated by this
Section 3.9(c) shall have the right to withdraw such Change of
Control Repurchase Notice in whole or in a portion thereof that is a
principal amount of $1,000 or in an integral multiple thereof at any time
prior to the close of business on the Business Day immediately preceding
the Change of Control Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with
Section 3.10(b).
|
|||
|
(5)
|
A
Paying Agent shall promptly notify the Company of the receipt by it of any
Change of Control Repurchase Notice or written withdrawal
thereof.
|
|||
|
(6)
|
Anything
herein to the contrary notwithstanding, in the case of Global Securities,
any Change of Control Repurchase Notice may be delivered or withdrawn and
such Securities may be surrendered or delivered for purchase in accordance
with the Applicable Procedures as in effect from time to
time.
|
|||
|
(d)
|
If
a Change of Control also constitutes a Public Acquiror Change of Control,
instead of making a Change of Control Purchase Offer,
and
|
|||
-39-
|
instead
of paying a "Make Whole Premium" as set forth under Section 4.1(f),
the Company may elect to adjust the Conversion Rate and related conversion
obligation, such that, from and after the Change of Control Effective Date
of the Public Acquiror Change of Control, the Securities shall be
convertible into Public Acquiror Shares; provided, however, that if, prior
to the date that is five years plus one day from the last Original Issue
Date, Holders would otherwise be entitled to receive, upon conversion of
the Securities, any Ineligible Consideration, such Holders shall not be
entitled to receive such Ineligible Consideration but the Company or the
successor or acquiror, as the case may be, shall have the right (at the
sole option of the Company or the successor or acquiror, as the case may
be) to deliver either such Ineligible Consideration or "prescribed
securities" for the purposes of clause 212(1)(b)(vii)(E) of the Tax Act
(or any successor provision) with a market value equal to the market value
of such Ineligible Consideration.
|
||||
|
(e)
|
In
the event that the Company makes an election pursuant to
Section 3.9(d) hereof, the Company shall not be required to make a
Change of Control Purchase Offer and the Conversion Rate shall be adjusted
by multiplying the Conversion Rate in effect immediately before the Public
Acquiror Change of Control by the following fraction:
|
|||
|
(A)
|
the
numerator of which will be (1) in the case of a merger, consolidation or
binding share exchange pursuant to which Shares are converted into cash,
securities or other property, the value of all cash and any other
consideration, as determined by the Board of Directors, paid or payable
per Share, or (2) in the case of any other Public Acquiror Change of
Control, the average of the Closing Prices of the Shares for the five
consecutive Trading Days prior to but excluding the Change of Control
Effective Date of such Public Acquiror Change of Control; and
|
|||
|
(B)
|
the
denominator of which will be the average of the closing prices of the
Public Acquiror Shares for the five consecutive Trading Days prior to but
excluding the Change of Control Effective Date of such Public Acquiror
Change of Control.
|
|||
|
(f)
|
Not
later than 10 Trading Days prior to the expected Change of Control
Effective Date of a Public Acquiror Change of Control, the Company shall
provide to all Holders of the Securities and the Trustee, Conversion
Agent, and Paying Agent a notification (a "Public Acquisition
Notice") stating whether the Company shall:
|
|||
|
(A)
|
elect
to adjust the Conversion Rate and related conversion obligation under
Section 3.9(e), in which case the Company will not be required to
make a Change of Control Purchase Offer or mail a Change of Control
Company Notice, or
|
|||
-40-
|
(B)
|
not
elect to adjust the Conversion Rate and related conversion obligation
under Section 3.9(e), in which case the Company will be required to
make a Change of Control Purchase Offer.
|
|||
|
(g)
|
The
Company shall deposit cash at the time and in the manner as provided in
Section 3.11, sufficient to pay the aggregate Change of Control
Repurchase Price of all Securities to be purchased pursuant to this
Section 3.9. However, the Company may elect to satisfy its obligation
to pay the Change of Control Repurchase Price, in whole or in part, by
delivering Shares, as provided for, and subject to the conditions, under
Section 3.13.
|
|||
|
3.10
|
Effect of Change of
Control Repurchase Notice.
|
|||
|
(a)
|
Upon
receipt by any Paying Agent of a properly completed Change of Control
Repurchase Notice from a Holder, the Holder of the Security in respect of
which such Change of Control Repurchase Notice was given shall (unless
such Change of Control Repurchase Notice is withdrawn as specified in
Section 3.10(b)) thereafter be entitled to receive the Change of
Control Repurchase Price with respect to such Security, subject to the
occurrence of the Change of Control Effective Date. Such Change of Control
Repurchase Price shall be paid to such Holder promptly following the later
of (1) the Change of Control Repurchase Date (provided that the conditions
in Section 3.9 have been satisfied) and (2) the time of delivery of
such Security to a Paying Agent by the Holder thereof in the manner
required by Section 3.9(c). Securities in respect of which a Change
of Control Repurchase Notice has been given by the Holder thereof may not
be converted into Shares pursuant to Article IV on or after the date of
the delivery of such Change of Control Repurchase Notice unless such
Change of Control Repurchase Notice has first been validly withdrawn in
accordance with Section 3.10(b) with respect to the Securities to be
converted.
|
|||
|
(b)
|
A
Change of Control Repurchase Notice may be withdrawn by means of a written
notice (which may be delivered by mail, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of
Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) of withdrawal delivered by the
Holder to a Paying Agent at any time prior to the close of business on the
Business Day immediately preceding the Change of Control Repurchase Date,
specifying (1) the principal amount of the Security or portion thereof
(which must be a principal amount of $1,000 or an integral multiple of
$1,000 in excess thereof) with respect to which such notice of withdrawal
is being submitted, (2) if certificated Securities have been issued, the
certificate number of the Security being withdrawn in whole or in part (or
if the Securities are not certificated, such written notice must comply
with the Applicable Procedures) and (3) the
portion
|
|||
-41-
|
of
the principal amount of the Security that will remain subject to the
Change of Control Repurchase Notice, which portion must be a principal
amount of $1,000 or an integral multiple thereof.
|
|||
|
3.11
|
Deposit of Change of
Control Repurchase Price.
|
||
|
(a)
|
On
or before 11:00 a.m. Toronto time on the Business Day following the
applicable Change of Control Repurchase Date, the Company shall deposit
with the Trustee or with a Paying Agent (or if the Company or an Affiliate
of the Company is acting as the Paying Agent, shall segregate and hold in
trust as provided in Section 2.6) an amount of money (in immediately
available funds if deposited on or after such Change of Control Repurchase
Date) and/or subject to and in accordance with Section 3.13, a number
of Shares, sufficient to pay the aggregate Change of Control Repurchase
Price of all the Securities or portions thereof that are to be purchased
as of the Change of Control Repurchase Date.
|
||
|
(b)
|
If
a Paying Agent or the Trustee holds, in accordance with the terms hereof,
money and/or Shares sufficient to pay the Change of Control Repurchase
Price of any Security for which a Change of Control Repurchase Notice has
been tendered and not withdrawn in accordance with this Indenture then, on
the Business Day following the applicable Change of Control Repurchase
Date, such Security will cease to be outstanding, whether or not the
Security is delivered to the Paying Agent or the Trustee, and interest
shall cease to accrue, and the rights of the Holder in respect of the
Security shall terminate (other than the right to receive the Change of
Control Repurchase Price as aforesaid). The Company shall publicly
announce the principal amount of Securities repurchased on or as soon as
practicable after the Change of Control Repurchase Date.
|
||
|
(c)
|
The
Paying Agent will promptly return to the respective Holders thereof any
Securities with respect to which a Change of Control Repurchase Notice has
been withdrawn in compliance with this Indenture.
|
||
|
(d)
|
If
a Change of Control Repurchase Date falls after a Regular Record Date and
on or before the related Interest Payment Date, then interest on the
Securities payable on such Interest Payment Date will instead be payable
on such Interest Payment Date to the Holders in whose names the Securities
are registered at the close of business on such Regular Record
Date.
|
||
|
3.12
|
Repayment to the
Company.
|
||
To
the extent that the aggregate amount of cash and/or Shares, if applicable,
deposited by the
Company pursuant to Section 3.11 exceeds the aggregate Change of Control
Repurchase Price of the Securities or portions thereof that the Company is
obligated to purchase, then
-42-
promptly
after the Change of Control Repurchase Date the Trustee or a Paying Agent, as
the case may be, shall return any such excess cash and/or Shares, if
applicable, to the Company.
|
3.13
|
Right to Pay Change of
Control Repurchase Price in Shares.
|
||
|
(a)
|
Subject
to the other provisions of this Section 3.13, the Company may, at its
option, elect to satisfy its obligation to pay all or any portion of the
Change of Control Repurchase Price by issuing and delivering to Holders on
the Change of Control Repurchase Date that number of Shares obtained by
dividing the Change of Control Repurchase Price, or such portion thereof
payable in Shares, as the case may be, by 95% of the Current Market Price
(the "Share Change of
Control Right"). Holders who are Qualified Canadians will receive
Voting Shares and Holders who are not Qualified Canadians will receive
Variable Voting Shares.
|
||
|
(b)
|
The
Company shall exercise the Share Change of Control Right by so specifying
in the Change of Control Company Notice. The Change of Control Company
Notice shall also specify the portion of Change of Control Repurchase
Price in respect of which the Company is exercising the Share Change of
Control Right, if both cash and Shares are payable, the percentage of each
on a per Security basis and the method of calculating the Current Market
Price. When the Company determines the actual number of Shares to be
issued and delivered in accordance with the provisions of this
Section 3.13, it will issue a press release on a national newswire
and publish such information on its website.
|
||
|
The
Company may not change the form of components or percentages of
consideration set out in a Change of Control Company Notice except with
respect to the payment of the Change of Control Repurchase Price in cash
pursuant to the non-satisfaction of the conditions under
Section 3.13(d).
|
|||
|
(c)
|
Prior
to the issuance of Shares, the Trustee will provide the Holders of
Securities with a form of Residency Declaration and instructions with
respect to its completion and transmission to the Trustee. Each Holder of
Securities who is a Qualified Canadian is entitled to receive Voting
Shares upon the delivery to the Trustee of a duly completed Residency
Declaration to the effect that such Holder is a Qualified Canadian. Each
Holder of Securities who is not a Qualified Canadian is entitled to
receive Variable Voting Shares upon the delivery to the Trustee of a duly
completed Residency Declaration to the effect that such Holder is not a
Qualified Canadian. Anything herein to the contrary notwithstanding, in
the case of Global Securities, Residency Declarations may be delivered in
accordance with the Applicable Procedures. Holders of Securities who fail
to provide a duly completed Residency Declaration and who are not
otherwise determined to be Qualified Canadians by the Trustee will be
deemed not to be Qualified Canadians and will receive Variable Voting
Shares.
|
||
-43-
|
(d)
|
The
Company's right to exercise the Share Change of Control Right shall be
conditional upon the following conditions being met on the Business Day
immediately preceding the Change of Control Repurchase Date:
|
|||
|
(i)
|
the
Shares to be issued on exercise of the Share Change of Control Right shall
be qualified for distribution under applicable securities laws of each
province of Canada;
|
|||
|
(ii)
|
the
Shares to be issued on exercise of the Share Change of Control Right shall
be listed on the TSX or a national securities exchange or quoted in an
inter-dealer quotation system of any registered national securities
association;
|
|||
|
(iii)
|
the
Company being a reporting issuer not in default of its reporting
obligations under applicable securities legislation where the distribution
of such Shares occurs;
|
|||
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|||
|
(v)
|
the
receipt by the Trustee of an Officer's Certificate stating that conditions
(i), (ii), (iii) and (iv) above have been satisfied and setting forth the
number of Shares to be issued and delivered for each $1,000 principal
amount of Securities and the Current Market Price used for calculating the
number of Shares to be issued and delivered to Holders for each $1,000
principal amount of Securities; and
|
|||
|
(vi)
|
the
receipt by the Trustee of an Opinion of Counsel to the effect that such
Shares have been duly authorized and, when issued and delivered pursuant
to the terms of this Indenture in payment (whether in whole or in part) of
the Change of Control Repurchase Price, will be validly issued as fully
paid and non-assessable, that conditions (i) and (ii) above have been
satisfied and that, relying exclusively on certificates of no default
issued by the relevant securities authorities, condition (iii) above is
satisfied, except that the opinion in respect of condition (iii) need not
be expressed with respect to those provinces where such certificates are
not issued.
|
|||
|
If
the foregoing conditions are not satisfied prior to the close of business
on the Change of Control Repurchase Date, the Company shall pay the Change
of Control Repurchase Price in cash in accordance with Section 3.11
unless each of the Holder and the Company waives the conditions which are
not satisfied.
|
||||
|
(e)
|
In
the event that the Company duly exercises its Share Change of Control
Right, upon presentation and surrender of the Securities for payment on
the Change of Control Repurchase Date, at any place where a register is
maintained pursuant to Section 2.5 or any other place specified in
the
|
|||
-44-
|
Change
of Control Company Notice, the Company shall on or before 11:00 a.m.
Toronto Time on the Change of Control Repurchase Date make the delivery to
the Trustee for delivery to and on account of the Holders, of certificates
representing the Shares to which such holders are entitled.
|
|||
|
(f)
|
The
Company will not issue fractional Shares upon the exercise of the Share
Change of Control Right. If more than one Security shall be surrendered
for repurchase at one time by the same Holder, the number of full Shares
that shall be issuable upon repurchase shall be computed on the basis of
the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. In lieu of any
fractional Shares, the Company will pay to the Trustee for the account of
the Holders, at the time contemplated in Section 3.13(e), the cash
equivalent thereof (less any tax required to be deducted, if any)
determined for each Holder by subtracting from the Change of Control
Repurchase Price a number equal to the product obtained by multiplying the
number of Shares issued and delivered under this Section 3.13 by 95%
of the Current Market Price.
|
||
|
(g)
|
A
Holder shall be treated as the Holder of record of the Shares issued on
due exercise by the Company of its Share Change of Control Right effective
immediately after the close of business on the Change of Control
Repurchase Date, and shall be entitled to all substitutions therefor, all
income earned thereon or accretions thereto and all dividends or
distributions (including dividends or distributions in kind) thereon and
arising thereafter, and in the event that the Trustee receives the same,
it shall hold the same for the benefit of such Holder.
|
||
|
(h)
|
The
Company shall at all times reserve and keep available out of its
authorized Shares (if the number thereof is or becomes limited), solely
for the purpose of issue and delivery upon the exercise of the Share
Change of Control Right as provided herein, and shall issue to Holders to
whom Shares will be issued pursuant to the exercise of the Share Change of
Control Right, such number of Shares as shall be issuable in such event.
All Shares which shall be so issuable shall be duly and validly issued as
fully paid and non-assessable.
|
||
|
(i)
|
Each
certificate representing Shares issued in payment of the Change of Control
Repurchase Price of Securities bearing the restrictive legend set forth in
Section 2.14(j), as well as all certificates issued in exchange for
or in substitution of the foregoing securities shall bear the restrictive
legend set forth in Section 2.14(j); provided that if the Shares are
being sold in accordance with Rule 904 of Regulation S, the restrictive
legend may be removed by providing a duly completed and signed
certificate, the form of which may be obtained from the Registrar, to the
Registrar and the Company, upon receipt of which the Company has agreed to
cause its counsel to deliver to the Registrar, at the Company's expense,
such legal
|
-45-
|
opinions
or other documentation satisfactory to the Registrar, to the effect that
such restrictive legend is no longer required under applicable
requirements of the Securities Act; and provided further that, if any such
securities are being sold pursuant to an exemption provided by Rule 144
under the Securities Act or any other available exemption from the
registration requirements of the Securities Act, the restrictive legend
may be removed by delivery to the Trustee, as registrar and transfer agent
of the Securities, an Opinion of Counsel, of recognized standing
reasonably satisfactory to the Company, to the effect that the restrictive
legend is no longer required under the applicable requirements of the
Securities Act or state securities laws. Provided that the
Trustee obtains confirmation from the Company that such Counsel is
satisfactory to it, it shall be entitled to rely on such Opinion of
Counsel without further inquiry.
|
|||
|
3.14
|
Purchase of Securities
at Option of the Holder on Specified Dates.
|
||
|
(a)
|
Securities
shall be purchased in cash in whole or in part (which must be equal to
$1,000 principal amount or any integral multiple thereof) by the Company,
at the option of Holders, in accordance with the provisions of this
Section 3.14 and paragraph 11 of the Securities on June 1, 2010,
June 1, 2015, June 1, 2020, June 1, 2025 and June 1, 2030 (each, a "Put Right Purchase
Date"), or the time of the surrender of the Securities, if later,
for cash at a purchase price equal to 100% of the principal amount of the
surrendered Securities together with accrued but unpaid interest, if any,
up to but not including the applicable Put Right Purchase Date (the "Put Right Purchase
Price"); provided that if the Put Right Purchase Date falls after a
Regular Record Date and on or before the related Interest Payment Date,
then interest on the Securities payable on such Interest Payment Date will
instead be payable on such Interest Payment Date to the Holders in whose
names the Securities are registered at the close of business on such
Regular Record Date. The Company may elect to satisfy its obligation to
pay the Put Right Purchase Price, in whole or in part, by delivering
Shares, as provided for, and subject to the conditions, under
Section 3.15.
|
||
|
(b)
|
Unless
the Company has issued a notice to redeem the Securities pursuant to
Section 3.3 hereof, the Company shall give written notice of the
applicable Put Right Purchase Date by notice sent by first-class mail to
the Trustee and to each Holder (and to beneficial owners as required by
applicable law), at its address shown in the register of the Registrar,
not less than 20 Business Days and not more than 25 Business Days prior to
each Put Right Purchase Date (the "Company Put Right
Notice"). Each Company Put Right Notice shall include a form of Put
Right Purchase Notice to be completed by a Holder and shall
state:
|
||
-46-
|
(1)
|
the
Put Right Purchase Price, for the applicable Put Right Purchase Date, the
Conversion Rate then in effect and if payment, whether in whole or in
part, will be made in Shares;
|
|||
|
(2)
|
the
name and address of the Paying Agent and the Conversion
Agent;
|
|||
|
(3)
|
that
Securities as to which a Put Right Purchase Notice has been given may be
converted, if they are otherwise convertible, only in accordance with
Article IV and paragraph 11 of the Securities and only to the extent
that the Put Right Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
|
|||
|
(4)
|
that
Securities must be surrendered to the Paying Agent as a condition to
collecting payment of the Put Right Purchase Price;
|
|||
|
(5)
|
that
the Put Right Purchase Price for any Security as to which a Put Right
Purchase Notice has been given and not withdrawn will be paid promptly
following the later of the Put Right Purchase Date and the time of
surrender of such Security as described in subclause (4)
above;
|
|||
|
(6)
|
the
procedures the Holder must follow to exercise rights under this
Section 3.14 and a brief description of those rights;
|
|||
|
(7)
|
the
conversion rights of the Securities;
|
|||
|
(8)
|
the
procedures for withdrawing a Put Right Purchase Notice (including a
summary of the terms of Section 3.14(g));
|
|||
|
(9)
|
that,
unless the Company fails to pay such Put Right Purchase Price on
Securities for which a Put Right Purchase Notice has been submitted, such
Securities shall no longer be outstanding and interest on such Securities
will cease to accrue on and after the Put Right Purchase Date;
and
|
|||
|
(10)
|
the
CUSIP and/or ISIN number of the Securities.
|
|||
|
(c)
|
If
any of the Securities are to be redeemed in the form of a Global Security,
the Company shall modify such notice to the extent necessary to accord
with the Applicable Procedures relating to repurchases.
|
|||
|
(d)
|
At
the Company's request, the Trustee shall give such Company Put Right
Notice on behalf of the Company and at the Company's expense; provided,
however, that, in all cases, the text of such Company Put Right Notice
shall be prepared by the Company; provided further that the Company shall
make such request and deliver the text of such Company Put Right Notice at
least five Business Days prior to the date by
which
|
|||
-47-
|
such
Company Put Right Notice must be given in accordance with this
Section 3.14.
|
||||
|
(e)
|
To
exercise its rights pursuant to this Section 3.14, the Holder shall
deliver to the Paying Agent a properly completed put right purchase notice
(each, a "Put Right
Purchase Notice") at any time from the opening of business on the
date that is 20 Business Days prior to the applicable Put Right
Purchase Date until the close of business on the Business Day immediately
preceding the Put Right Purchase Date stating:
|
|||
|
(1)
|
if
certificated Securities have been issued, the certificate number of the
Security that the Holder will deliver for repurchase (or if the Securities
are not certificated, the Put Right Purchase Notice must comply with the
Applicable Procedures relating to purchases),
|
|||
|
(2)
|
the
portion of the principal amount of the Security which the Holder will
deliver to be purchased, which portion must be a principal amount of
$1,000 or an integral multiple thereof, and
|
|||
|
(3)
|
that
such Security shall be purchased as of the applicable Put Right Purchase
Date pursuant to the terms and conditions in this Section 3.14 and
the Securities.
|
|||
|
(f)
|
The
Company shall pay the Put Right Purchase Price for all Securities with
respect to which a Put Right Purchase Notice is given and not validly
withdrawn, upon the later of the Business Day following the applicable Put
Right Purchase Date and delivery of such Securities to the Paying Agent
(together with all necessary endorsements) at the offices of the Paying
Agent (if the Securities are not certificated, such delivery must comply
with the Applicable Procedures relating to purchases). Delivery of such
Security shall be a condition to receipt by the Holder of the Put Right
Purchase Price therefor. The Put Right Purchase Price shall be paid
pursuant to this Section 3.14 only if the Security delivered to the
Paying Agent conforms in all respects to the description thereof in the
related Put Right Purchase Notice, as determined by the
Company.
|
|||
|
(g)
|
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the Put Right Purchase Notice contemplated by this Section 3.14 shall
have the right to withdraw such Put Right Purchase Notice in whole or in
part at any time prior to the close of business on the Business Day
immediately preceding the applicable Put Right Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent
specifying:
|
|||
|
(1)
|
the
aggregate principal amount of the Security (which must be equal to $1,000
or any integral multiple thereof) with respect to which such notice of
withdrawal is being submitted,
|
|||
-48-
|
(2)
|
the
certificate number, if any, of the Security in respect of which such
notice of withdrawal is being submitted (or, if the Securities are not
certificated, the withdrawal notice must comply with the Applicable
Procedures relating to withdrawals), and
|
|||
|
(3)
|
the
aggregate principal amount, if any, of such Security which remains subject
to the original Put Right Purchase Notice and which has been or will be
delivered for purchase by the Company.
|
|||
|
(h)
|
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Put Right Purchase Notice or written notice of withdrawal
thereof.
|
|||
|
(i)
|
On
or before 11:00 a.m. Toronto time on the Business Day following the
applicable Put Right Purchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or if the Company or an Affiliate of the
Company is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.6) an amount of money (in immediately
available funds if deposited on or after such Put Right Purchase Date)
and/or, subject to and in accordance with Section 3.15, a number of
Shares sufficient to pay the aggregate Put Right Purchase Price of all the
Securities or portions thereof which are to be purchased as of the Put
Right Purchase Date.
|
|||
|
If
a Paying Agent holds, in accordance with the terms hereof, money and/or
Shares sufficient to pay the Put Right Purchase Price of any Security for
which a Put Right Notice has been tendered and not withdrawn, then, on the
Business Day after the Put Right Purchase Date, such Security will cease
to be outstanding, and interest shall cease to accrue, whether or not the
Security is delivered to the Paying Agent, and the rights of the Holder in
respect of the Security shall terminate (other than the right to receive
the Put Right Purchase Price as aforesaid).
|
||||
|
The
Put Right Purchase Price shall be paid to such Holder with respect to
Securities for which a Put Right Purchase Notice has been tendered and not
validly withdrawn, subject to receipt of funds by the Paying Agent,
promptly after the later of (A) the applicable Put Right Purchase Date
with respect to such Security (provided that the conditions in
Section 3.14(f) have been satisfied) and (B) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner
required by Section 3.14(f). Securities in respect of which a Put
Right Purchase Notice has been given by the Holder thereof, if convertible
pursuant to Article IV, may not be converted on or after the date of the
delivery of such Put Right Purchase Notice, unless such Put Right Purchase
Notice has first been validly withdrawn as specified in
Section 3.14(g).
|
||||
|
To
the extent that the aggregate amount of cash and/or Shares, if applicable,
deposited by the Company pursuant to this Section 3.14(i) exceeds the
aggregate Put Right Purchase Price of the Securities or portions thereof
that the Company is obligated to purchase, then promptly after the Put
Right Purchase Date the
|
||||
-49-
|
Trustee
or a Paying Agent, as the case may be, shall return any such excess cash
and/or Shares, if applicable, to the Company, or if such funds and/or
Shares, if applicable, are then held by the Company in trust, they shall
be discharged from the trust.
|
|||
|
(j)
|
the
Company shall only be obligated to purchase, pursuant to this
Section 3.14, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.
|
||
|
3.15
|
Right to Pay Put Right
Purchase Price in Shares.
|
||
|
(a)
|
Subject
to the other provisions of this Section 3.15, the Company may, at its
option, elect to satisfy its obligation to pay all or any portion of the
Put Right Purchase Price by issuing and delivering to Holders on the Put
Right Purchase Date that number of Shares obtained by dividing the Put
Right Purchase Price, or such portion thereof payable in Shares, as the
case may be, by 95% of the Current Market Price (the "Share Put Right").
Holders who are Qualified Canadians will receive Voting Shares and Holders
who are not Qualified Canadians will receive Variable Voting
Shares.
|
||
|
(b)
|
The
Company shall exercise the Share Put Right by so specifying in the Company
Put Right Notice. The Put Right Purchase Notice shall also specify the
portion of the Put Right Purchase Price in respect of which the Company is
exercising the Share Put Right, if both cash and Shares are payable, the
percentage of each on a per Security basis and the method of calculating
the Current Market Price. When the Company determines the actual number of
Shares to be issued and delivered in accordance with the provisions of
this Section 3.15, it will issue a press release on a national
newswire and publish such information on its website.
|
||
|
The
Company may not change the form of components or percentages of
consideration set out in a Put Right Purchase Notice except with respect
to the payment of the Put Right Purchase Price in cash pursuant to the
non-satisfaction of the conditions under
Section 3.15(d).
|
|||
|
(c)
|
Prior
to the issuance of Shares, the Trustee will provide the Holders of
Securities with a form of Residency Declaration and instructions with
respect to its completion and transmission to the Trustee. Each Holder of
Securities who is a Qualified Canadian is entitled to receive Voting
Shares upon the delivery to the Trustee of a duly completed Residency
Declaration to the effect that such Holder is a Qualified Canadian. Each
Holder of Securities who is not a Qualified Canadian is entitled to
receive Variable Voting Shares upon the delivery to the Trustee of a duly
completed Residency Declaration to the effect that such Holder is not a
Qualified Canadian. Anything herein to the contrary notwithstanding,
in
|
||
-50-
|
the
case of Global Securities, Residency Declarations may be delivered in
accordance with the Applicable Procedures. Holders of Securities who fail
to provide a duly completed Residency Declaration and who are not
otherwise determined to be Qualified Canadians by the Trustee will be
deemed not to be Qualified Canadians and will receive Variable Voting
Shares.
|
||||
|
(d)
|
The
Company's right to exercise the Share Put Right shall be conditional upon
the following conditions being met on the Business Day immediately
preceding the Put Right Purchase Date:
|
|||
|
(i)
|
the
Shares to be issued on exercise of the Share Put Right shall be qualified
for distribution under applicable securities laws of each province of
Canada;
|
|||
|
(ii)
|
the
Shares to be issued on exercise of the Share Put Right shall be listed on
the TSX or a national securities exchange or quoted in an inter-dealer
quotation system of any registered national securities
association;
|
|||
|
(iii)
|
the
Company being a reporting issuer not in default of its reporting
obligations under applicable securities legislation where the distribution
of such Shares occurs;
|
|||
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|||
|
(v)
|
the
receipt by the Trustee of an Officer's Certificate stating that conditions
(i), (ii), (iii) and (iv) above have been satisfied and setting forth the
number of Shares to be issued and delivered for each $1,000 principal
amount of Securities and the Current Market Price used for calculating the
number of Shares to be issued and delivered to Holders for each $1,000
principal amount of Securities; and
|
|||
|
(vi)
|
the
receipt by the Trustee of an Opinion of Counsel to the effect that such
Shares have been duly authorized and, when issued and delivered pursuant
to the terms of this Indenture in payment (whether in whole or in part) of
the Put Right Purchase Price, will be validly issued as fully paid and
non-assessable, that conditions (i) and (ii) above have been satisfied and
that, relying exclusively on certificates of no default issued by the
relevant securities authorities, condition (iii) above is satisfied,
except that the opinion in respect of condition (iii) need not be
expressed with respect to those provinces where such certificates are not
issued.
|
|||
|
If
the foregoing conditions are not satisfied prior to the close of business
on the Put Right Purchase Date, the Company shall pay the Put Right
Purchase Price in
|
||||
-51-
|
cash
in accordance with Section 3.14(i) unless each of the Holder and the
Company waives the conditions which are not satisfied.
|
|||
|
(e)
|
In
the event that the Company duly exercises its Share Put Right, upon
presentation and surrender of the Securities for payment on the Put Right
Purchase Date, at any place where a register is maintained pursuant to
Section 2.5 or any other place specified in the Put Right Purchase
Notice, the Company shall on or before 11:00 a.m. Toronto Time on the Put
Right Purchase Date make the delivery to the Trustee for delivery to and
on account of the Holders, of certificates representing the Shares to
which such holders are entitled.
|
||
|
(f)
|
The
Company will not issue fractional Shares upon the exercise of the Share
Put Right. If more than one Security shall be surrendered for purchase at
one time by the same Holder, the number of full Shares that shall be
issuable upon purchase shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the
extent permitted hereby) so surrendered. In lieu of any fractional Shares,
the Company will pay to the Trustee for the account of the Holders, at the
time contemplated in Section 3.15(e), the cash equivalent thereof
(less any tax required to be deducted, if any) determined by subtracting
from the Put Right Purchase Price a number equal to the product obtained
by multiplying the number of Shares issued and delivered under this
Section 3.15 by 95% of the Current Market Price.
|
||
|
(g)
|
A
Holder shall be treated as the Holder of record of the Shares issued on
due exercise by the Company of its Share Put Right effective immediately
after the close of business on the Put Right Purchase Date, and shall be
entitled to all substitutions therefor, all income earned thereon or
accretions thereto and all dividends or distributions (including dividends
or distributions in kind) thereon and arising thereafter, and in the event
that the Trustee receives the same, it shall hold the same for the benefit
of such Holder.
|
||
|
(h)
|
The
Company shall at all times reserve and keep available out of its
authorized Shares (if the number thereof is or becomes limited), solely
for the purpose of issue and delivery upon the exercise of the Share Put
Right as provided herein, and shall issue to Holders to whom Shares will
be issued pursuant to the exercise of the Share Put Right, such number of
Shares as shall be issuable in such event. All Shares which shall be so
issuable shall be duly and validly issued as fully paid and
non-assessable.
|
||
|
(i)
|
Each
certificate representing Shares issued in payment of the Put Purchase
Price of Securities bearing the restrictive legend set forth in
Section 2.14(j), as well as all certificates issued in exchange for
or in substitution of the foregoing securities shall bear the restrictive
legend set forth in Section 2.14(j); provided that if the Shares are
being sold in accordance with Rule 904 of Regulation S, the restrictive
legend may be
|
||
-52-
|
removed
by providing a duly completed and signed certificate, the form of which
may be obtained from the Registrar, to the Registrar and the Company, upon
receipt of which the Company has agreed to cause its counsel to deliver to
the Registrar, at the Company's expense, such legal opinions or other
documentation satisfactory to the Registrar, to the effect that such
restrictive legend is no longer required under applicable requirements of
the Securities Act; and provided further that, if any such securities are
being sold pursuant to an exemption provided by Rule 144 under the
Securities Act or any other available exemption from the registration
requirements of the Securities Act, the restrictive legend may be removed
by delivery to the Trustee, as registrar and transfer agent of the
Securities, an Opinion of Counsel, of recognized standing reasonably
satisfactory to the Company, to the effect that the restrictive legend is
no longer required under the applicable requirements of the Securities Act
or state securities laws. Provided that the Trustee obtains
confirmation from the Company that such Counsel is satisfactory to it, it
shall be entitled to rely on such Opinion of Counsel without further
inquiry.
|
|||
|
3.16
|
Right to Pay Principal
Amount of the Securities in Shares.
|
||
|
(a)
|
Subject
to the other provisions of this Section 3.16, the Company may, at its
option, elect to satisfy its obligation to pay all or any portion of the
principal amount of the Securities, together with accrued and unpaid
interest thereon, on maturity by issuing and delivering to Holders on the
Final Maturity Date that number of Shares obtained by dividing the
aggregate principal amount of the Securities then outstanding, or such
portions thereof payable in Shares, as the case may be, together with
accrued and unpaid interest thereon, by 95% of the Current Market Price
(the "Share Maturity
Right"). Holders who are Qualified Canadians will receive Voting
Shares and Holders who are not Qualified Canadians will receive Variable
Voting Shares.
|
||
|
(b)
|
The
Company shall exercise the Share Maturity Right by so specifying in a
maturity notice (the "Maturity Notice") which
shall be delivered to the Trustee and the Holders (and to beneficial
owners as required by applicable law) not more than 25 Business Days
and not less than 20 Business Days prior to the Final Maturity Date.
The Maturity Notice shall also specify the portion of the principal amount
of Securities, together with accrued and unpaid interest thereon, in
respect of which the Company is exercising the Share Maturity Right, if
both cash and Shares are payable, the percentage of each on a per Security
basis and the method of calculating the Current Market Price. When the
Company determines the actual number of Shares to be issued and delivered
in accordance with the provisions of this Section 3.16, it will issue
a press release on a national newswire and publish such information on its
website.
|
||
-53-
|
The
Company may not change the form of components or percentages of
consideration set out in a Maturity Notice except with respect to the
payment of the principal amount of Securities, together with accrued and
unpaid interest thereon, in cash pursuant to the non-satisfaction of the
conditions under Section 3.16(d).
|
||||
|
(c)
|
Prior
to the issuance of Shares, the Trustee will provide the Holders of
Securities with a form of Residency Declaration and instructions with
respect to its completion and transmission to the Trustee. Each Holder of
Securities who is a Qualified Canadian is entitled to receive Voting
Shares upon the delivery to the Trustee of a duly completed Residency
Declaration to the effect that such Holder is a Qualified Canadian. Each
Holder of Securities who is not a Qualified Canadian is entitled to
receive Variable Voting Shares upon the delivery to the Trustee of a duly
completed Residency Declaration to the effect that such Holder is not a
Qualified Canadian. Anything herein to the contrary notwithstanding, in
the case of Global Securities, Residency Declarations may be delivered in
accordance with the Applicable Procedures. Holders of Securities who fail
to provide a duly completed Residency Declaration and who are not
otherwise determined to be Qualified Canadians by the Trustee will be
deemed not to be Qualified Canadians and will receive Variable Voting
Shares.
|
|||
|
(d)
|
The
Company's right to exercise the Share Maturity Right shall be conditional
upon the following conditions being met on the Business Day immediately
preceding the Final Maturity Date:
|
|||
|
(i)
|
the
Shares to be issued on exercise of the Share Maturity Right shall be
qualified for distribution under applicable securities laws of each
province of Canada;
|
|||
|
(ii)
|
the
Shares to be issued on exercise of the Share Maturity Right shall be
listed on the TSX or a national securities exchange or quoted in an
inter-dealer quotation system of any registered national securities
association;
|
|||
|
(iii)
|
the
Company being a reporting issuer not in default of its reporting
obligations under applicable securities legislation where the distribution
of such Shares occurs;
|
|||
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|||
|
(v)
|
the
receipt by the Trustee of an Officer's Certificate stating that conditions
(i), (ii), (iii) and (iv) above have been satisfied and setting forth the
number of Shares to be issued and delivered for each $1,000 principal
amount of Securities and the Current Market Price used for calculating the
number of Shares to be issued and
|
|||
-54-
|
delivered
to Holders for each $1,000 principal amount of Securities;
and
|
||||
|
(vi)
|
the
receipt by the Trustee of an Opinion of Counsel to the effect that such
Shares have been duly authorized and, when issued and delivered pursuant
to the terms of this Indenture in payment (whether in whole or in part) of
the aggregate principal amount of the Securities then outstanding, will be
validly issued as fully paid and non-assessable, that conditions (i) and
(ii) above have been satisfied and that, relying exclusively on
certificates of no default issued by the relevant securities authorities,
condition (iii) above is satisfied, except that the opinion in respect of
condition (iii) need not be expressed with respect to those provinces
where such certificates are not issued.
|
|||
|
If
the foregoing conditions are not satisfied prior to the close of business
on the Final Maturity Date, the Company shall pay the aggregate principal
amount of the Securities in cash in accordance with Section 5.1 and
paragraph 3 of the Securities unless each of the Holder and the Company
waives the conditions which are not satisfied.
|
||||
|
(e)
|
In
the event that the Company duly exercises its Share Maturity Right, upon
presentation and surrender of the Securities for payment on the Final
Maturity Date, at any place where a register is maintained pursuant to
Section 2.5 or any other place specified in the Maturity Notice, the
Company shall on or before 11:00 a.m. Toronto Time on the Final Maturity
Date make the delivery to the Trustee for delivery to and on account of
the Holders, of certificates representing the Shares to which such holders
are entitled.
|
|||
|
(f)
|
The
Company will not issue fractional Shares upon the exercise of the Share
Maturity Right. If more than one Security shall be surrendered for
purchase at one time by the same Holder, the number of full Shares that
shall be issuable upon purchase shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. In lieu of any
fractional Shares, the Company will pay to the Trustee for the account of
the Holders, at the time contemplated in Section 5.1 and paragraph 3
of the Securities, the cash equivalent thereof (less any tax required to
be deducted, if any) determined for each Holder by subtracting from the
principal amount a number equal to the product obtained by multiplying the
number of Shares issued and delivered under this Section 3.16 by 95%
of the Current Market Price.
|
|||
|
(g)
|
A
Holder shall be treated as the Holder of record of the Shares issued on
due exercise by the Company of its Share Maturity Right effective
immediately after the close of business on the Final Maturity Date, and
shall be entitled to all substitutions therefor, all income earned thereon
or
|
|||
-55-
|
accretions
thereto and all dividends or distributions (including dividends or
distributions in kind) thereon and arising thereafter, and in the event
that the Trustee receives the same, it shall hold the same for the benefit
of such Holder.
|
|||
|
(h)
|
The
Company shall at all times reserve and keep available out of its
authorized Shares (if the number thereof is or becomes limited), solely
for the purpose of issue and delivery upon the exercise of the Share
Maturity Right as provided herein, and shall issue to Holders to whom
Shares will be issued pursuant to the exercise of the Share Maturity
Right, such number of Shares as shall be issuable in such event. All
Shares which shall be so issuable shall be duly and validly issued as
fully paid and non-assessable.
|
||
|
(i)
|
Each
certificate representing Shares issued in payment of the principal amount
of the Price of Securities bearing the restrictive legend set forth in
Section 2.14(j), as well as all certificates issued in exchange for
or in substitution of the foregoing securities shall bear the restrictive
legend set forth in Section 2.14(j); provided that if the Shares are
being sold in accordance with Rule 904 of Regulation S, the restrictive
legend may be removed by providing a duly completed and signed
certificate, the form of which may be obtained from the Registrar, to the
Registrar and the Company, upon receipt of which the Company has agreed to
cause its counsel to deliver to the Registrar, at the Company's expense,
such legal opinions or other documentation satisfactory to the Registrar,
to the effect that such restrictive legend is no longer required under
applicable requirements of the Securities Act; and provided further that,
if any such securities are being sold pursuant to an exemption provided by
Rule 144 under the Securities Act or any other available exemption from
the registration requirements of the Securities Act, the restrictive
legend may be removed by delivery to the Trustee, as registrar and
transfer agent of the Securities, an Opinion of Counsel, of recognized
standing reasonably satisfactory to the Company, to the effect that the
restrictive legend is no longer required under the applicable requirements
of the Securities Act or state securities laws. Provided that
the Trustee obtains confirmation from the Company that such Counsel is
satisfactory to it, it shall be entitled to rely on such Opinion of
Counsel without further inquiry.
|
||
|
3.17
|
Securities Purchased
in Part.
|
||
Any
Security, that is not in the form of a Global Security, that is to be purchased
only in part shall be surrendered at the office of a Paying Agent, and promptly
after the Change of Control Repurchase Date or the Put Right Purchase Date, as
the case may be, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge, a new
Security or Securities, of such authorized denomination or denominations as may
be requested by such Holder, in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so surrendered
that is not purchased. No
-56-
Security
shall be purchased in part unless the principal amount redeemed is $1,000 or any
integral thereof. With respect to Global Securities, in the event Securities are
purchased only in part, the Trustee shall make notations on the Global Security
of the principal amount thererof so redeemed in accordance with the Applicable
Procedures.
|
3.18
|
Compliance with
Securities Laws Upon Purchase of
Securities.
|
In
connection with any offer to purchase Securities under Section 3.9 or
Section 3.14, the Company shall (a) comply with Rule 13e-4 and
Rule 14e-1 (or any successor to either such Rule), and any other tender
offer rules, if applicable, under the Exchange Act, (b) file the related
Schedule TO (or any successor or similar schedule, form or report) if required
under the Exchange Act, and (c) otherwise comply with all Canadian federal and
provincial laws and United States securities laws in connection with such offer
to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.9 through 3.14 to
be exercised in the time and in the manner specified therein. To the extent that
compliance with any such laws, rules and regulations would result in a conflict
with any of the terms hereof, this Indenture is hereby modified to the extent
required for the Company to comply with such laws, rules and
regulations.
|
3.19
|
Purchase of Securities
in Open Market.
|
The
Company shall surrender any Security purchased by the Company pursuant to this
Article III to the Trustee for cancellation. Any Securities surrendered to the
Trustee for cancellation may not be reissued or resold by the Company and will
be cancelled promptly in accordance with Section 2.13. The Company may
repurchase Securities in open market and negotiated transactions.
ARTICLE
IV
CONVERSION
|
4.1
|
Conversion Privilege
and Conversion Rate.
|
||
|
(a)
|
Subject
to the right of the Company to pay some or all of the conversion
consideration in cash in accordance with Section 4.12, and upon
compliance with the provisions of this Article IV, at the option of the
Holder thereof, any Security or portion thereof that is an integral
multiple of $1,000 principal amount may be converted into fully paid and
non-assessable Shares (calculated as to each conversion to the nearest
1/100th of a share) at any time prior to the close of business on the
Business Day immediately preceding the Final Maturity Date, unless
previously redeemed by the Company or purchased by the Company at the
Holders' option, at the Conversion Rate in effect at such time, determined
as hereinafter provided, in effect at the time of conversion and subject
to the adjustments described below. Subject to the conversion procedures
set forth in Section 4.2, upon conversion of the Securities, Holders
who are Qualified Canadians will receive Voting Shares and Holders who are
not Qualified Canadians will receive Variable Voting
Shares.
|
||
-57-
|
(b)
|
The
conversion rights pursuant to this Article IV shall commence on the
initial issuance date of the Securities and expire at the close of
business on the Business Day immediately preceding the Final Maturity
Date, subject, in the case of conversion of any Global Security, to any
Applicable Procedures. If a Security is called for redemption or submitted
or presented for purchase pursuant to Article III, such conversion right
shall terminate at the close of business on the Business Day immediately
preceding the Redemption Date, Put Right Purchase Date or Change of
Control Repurchase Date for such Security (unless the Company shall fail
to make the Redemption Price, Put Right Purchase Price, or Change of
Control Repurchase Price payment when due in accordance with Article III,
in which case the conversion right shall terminate at the close of
business on the date such failure is cured and such Security is redeemed
or purchased, as the case may be). Securities in respect of which a Put
Right Purchase Notice or a Change of Control Repurchase Notice has been
delivered may not be surrendered for conversion pursuant to this Article
IV prior to a valid withdrawal of such Put Right Purchase Notice or such
Change of Control Repurchase Notice in accordance with the provisions of
Article III.
|
||
|
(c)
|
Provisions
of this Indenture that apply to conversion of all of a Security also apply
to conversion of a portion of a Security.
|
||
|
(d)
|
A
Holder of Securities is not entitled to any rights of a holder of Shares
until such Holder has converted its Securities into Shares, and only to
the extent such Securities are deemed to have been converted into Shares
pursuant to this Article IV.
|
||
|
(e)
|
The
Conversion Rate shall be adjusted in certain instances as provided in
Section 4.1(f) and Section 4.5.
|
||
|
(f)
|
If
prior to June 6, 2008, there shall have occurred a Change of Control
and more than 10% of the consideration for the Shares in the transaction
or transactions constituting the Change of Control consists of cash, other
than cash payments for fractional shares and cash payments made in respect
of dissenters' appraisal rights, then, subject to the provisions of
Section 3.9(d) regarding a Public Acquiror Change of Control, the
Company shall pay a "Make
Whole Premium" to the Holders of the Securities who convert their
Securities during the period beginning 10 Trading Days before the
anticipated Change of Control Effective Date and ending on the Change of
Control Repurchase Date by increasing the Conversion Rate for such
Securities. The number of additional Shares per $1,000 principal amount of
Securities constituting the Make Whole Premium shall be determined by
reference to the table below, based on the Change of Control Effective
Date of such Change of Control and the Share Price of such Change of
Control; provided that if the Share Price or Change of Control Effective
Date are not set forth on the table: (i) if
the
|
-58-
|
actual
Share Price on the Change of Control Effective Date is between two Share
Prices on the table or the actual Change of Control Effective Date is
between two Change of Control Effective Dates on the table, the Make Whole
Premium will be determined by a straight-line interpolation between the
Make Whole Premiums set forth for the two Share Prices and the two Change
of Control Effective Dates on the table based on a 365-day year, as
applicable, (ii) if the Share Price on the Change of Control
Effective Date exceeds $100.00 per Share, subject to adjustment as set
forth herein, no Make Whole Premium will be paid, and (iii) if the
Share Price on the Change of Control Effective Date is less than $37.00
per Share, subject to adjustment as set forth herein, no Make Whole
Premium will be paid. If Holders of Shares receive only cash in the
transaction, the Share Price shall be the cash amount paid per Share in
connection with the Change of Control. Otherwise, the Share Price shall be
equal to the average Closing Price of Shares over the ten Trading Day
period ending on the Trading Day immediately preceding the applicable
Change of Control Effective Date.
|
Make
Whole Premium Upon a Change of Control (Number of Additional
Shares)
|
Change
of Control Effective Date
|
||||
|
Share
Price on
Change
of Control
Effective
Date
|
April 6,
2005
|
June
6,
2006
|
June
6,
2007
|
June
6,
2008
|
|
$37.00
|
6.1937
|
5.7583
|
5.3490
|
0.0000
|
|
$40.00
|
5.2985
|
4.7669
|
4.1933
|
0.0000
|
|
$42.50
|
4.6945
|
4.1091
|
3.4369
|
0.0000
|
|
$45.00
|
4.1917
|
3.5713
|
2.8315
|
0.0000
|
|
$47.50
|
3.7701
|
3.1295
|
2.3480
|
0.0000
|
|
$50.00
|
3.4146
|
2.7650
|
1.9629
|
0.0000
|
|
$55.00
|
2.8546
|
2.2109
|
1.4137
|
0.0000
|
|
$60.00
|
2.4405
|
1.8224
|
1.0668
|
0.0000
|
|
$70.00
|
1.8851
|
1.3395
|
0.7027
|
0.0000
|
|
$80.00
|
1.5398
|
1.0677
|
0.5404
|
0.0000
|
|
$90.00
|
1.3086
|
0.8991
|
0.4550
|
0.0000
|
|
$100.00
|
1.1437
|
0.7849
|
0.4014
|
0.0000
|
The
Share Prices set forth in the first column of the table above will be adjusted
as of any date on which the Conversion Rate of the Securities is adjusted. The
adjusted Share Prices will
-59-
equal
the Share Prices applicable immediately preceding such adjustment multiplied by
a fraction, the numerator of which is the Conversion Rate immediately preceding
the adjustment giving rise to the Share Price adjustment and the denominator of
which is the Conversion Rate as so adjusted. The number of additional Shares set
forth in the table above will be adjusted in the same manner as the Conversion
Rate as set forth in Section 4.5 hereof, other than as a result of an
adjustment of the Conversion Rate by adding the Make Whole Premium as described
above.
|
(g)
|
By
delivering the amount of cash and/or the number of Shares issuable on
conversion to the Trustee, the Company will be deemed to have satisfied
its obligation to pay the principal amount of the Securities so converted
and its obligation to pay accrued and unpaid interest, attributable to the
period from the most recent Interest Payment Date through the Conversion
Date (which amount will be deemed paid in full rather than cancelled,
extinguished or forfeited).
|
||
|
4.2
|
Conversion
Procedure.
|
||
|
(a)
|
To
convert a Security, a Holder must (1) complete and manually sign the
conversion notice and the Residency Declaration form on the back of the
Security and deliver such notice and Residency Declaration to a Conversion
Agent, (2) surrender the Security to a Conversion Agent and (3) furnish
appropriate endorsements and transfer documents if required by a Registrar
or a Conversion Agent. The date on which the Holder satisfies all of those
requirements is the "Conversion Date". Upon
the conversion of a Security, the Company will pay the cash and deliver
the Shares, as applicable, as promptly as practicable after the later of
the Conversion Date and the date that all calculations necessary to make
such payment and delivery have been made, but in no event later than five
Business Days after the later of those dates. Anything herein to the
contrary notwithstanding, in the case of Global Securities, conversion
notices and Residency Declarations may be delivered and such Securities
may be surrendered for conversion in accordance with the Applicable
Procedures. Holders of Securities who fail to provide a duly completed
Residency Declaration and who are not otherwise determined to be Qualified
Canadians by the Trustee will be deemed not to be Qualified Canadians and
will receive Variable Voting Shares.
|
||
|
(b)
|
The
person in whose name the Shares are issuable upon conversion shall be
deemed to be a holder of record of such Shares on the later of
(i) the Conversion Date, (ii) the expiration of the period in
which the Company may elect to deliver cash in lieu of Shares, or
(iii) if the Company elects to deliver cash in lieu of some, but not
all, of such Shares, the date on which the amount of cash issuable per
Security has been determined; provided, however, that no surrender of a
Security on any Conversion Date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or
persons entitled to receive the Shares
upon
|
||
-60-
|
conversion
as the record holder or holders of such Shares on such date, but such
surrender shall be effective to constitute the person or persons entitled
to receive such Shares as the record holder or holders thereof for all
purposes at the close of business on the next succeeding day on which such
stock transfer books are open; provided further that such conversion shall
be at the Conversion Rate in effect on the Conversion Date as if the stock
transfer books of the Company had not been closed. Upon conversion of a
Security, such person shall no longer be a Holder of such Security. Except
as set forth in this Indenture, no payment or adjustment will be made for
dividends or distributions declared or made on Shares issued upon
conversion of a Security prior to the issuance of such
Shares.
|
||||
|
Holders
of Securities surrendered for conversion (in whole or in part) during the
period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date will
receive the semi-annual interest payable on such Securities on the
corresponding Interest Payment Date notwithstanding the conversion. Upon
surrender of any such Securities for conversion, such Securities shall
also be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such corresponding Interest
Payment Date. Except as otherwise provided in this Section 4.2(b), no
payment or adjustment will be made for accrued interest on a converted
Security. Instead, accrued interest will be deemed paid by the Shares (or
any cash in lieu thereof) received by the Holder on conversion. Delivery
to the Holder of the full number of Shares into which the Security is
convertible (or any cash in lieu thereof), together with any cash payment
of such Holder's fractional Shares, will thus be deemed:
|
||||
|
i)
|
to
satisfy the Company's obligation to pay the principal amount of a
Security; and
|
|||
|
ii)
|
to
satisfy the Company's obligation to pay accrued and unpaid
interest.
|
|||
|
Therefore,
accrued interest is deemed paid in full rather than cancelled,
extinguished or forfeited.
|
||||
|
(c)
|
Subject
to Section 4.2(b), nothing in this Section shall affect the right of
a Holder in whose name any Security is registered at the close of business
on a Regular Record Date to receive the interest payable on such Security
on the related Interest Payment Date in accordance with the terms of this
Indenture and the Securities. If a Holder converts more than one Security
at the same time, the amount of cash to be paid and the number of Shares
issuable upon the conversion, if any, (and the amount of any cash in lieu
of fractional shares pursuant to Section 4.3) shall be based on the
aggregate principal amount of all Securities so
converted.
|
|||
-61-
|
(d)
|
In
the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate
and deliver to the Holder thereof, without service charge, a new Security
or Securities of authorized denominations in an aggregate principal amount
equal to the, and in exchange for, unconverted portion of the principal
amount of such Security. A Security may be converted in part, but only if
the principal amount of such part is an integral multiple of $1,000 and
the principal amount of such Security to remain outstanding after such
conversion is equal to $1,000 or any integral multiple of $1,000 in excess
thereof.
|
||
|
4.3
|
Fractional
Shares.
|
||
The
Company will not issue fractional Shares upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full Shares that shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. In
lieu of any fractional Shares, the Company will pay an amount in cash equal to
the applicable portion of the average of the Closing Price of the Shares for
each of the ten consecutive Trading Days of the Conversion Reference
Period.
|
4.4
|
Company to Provide
Shares.
|
|||
|
(a)
|
The
Company shall, prior to issuance of any Securities hereunder, and from
time to time as may be necessary, reserve, out of its authorized but
unissued Shares, a sufficient number of Shares to permit the conversion of
all outstanding Securities into Shares.
|
|||
|
(b)
|
All
Shares delivered upon conversion of the Securities shall be newly issued
shares, shall be duly authorized, validly issued, fully paid and
non-assessable and shall be free from pre-emptive or similar rights and
free of any lien or adverse claim as the result of any action by the
Company.
|
|||
|
(c)
|
The
Company will endeavor promptly to comply with all Canadian federal and
provincial and United States securities laws regulating the offer and
delivery of Shares upon conversion of Securities.
|
|||
|
4.5
|
Adjustment of
Conversion Rate.
|
|||
|
(a)
|
The
Conversion Rate shall be adjusted from time to time by the Company as
follows:
|
|||
|
(1)
|
If
the Company shall pay a dividend or make a distribution to all holders of
outstanding Shares in Shares, the Conversion Rate in effect immediately
preceding the record date for the determination of shareholders entitled
to receive such dividend or other distribution shall be increased so that
the same shall equal
|
|||
-62-
|
the
rate determined by multiplying the Conversion Rate in effect immediately
preceding such record date by a fraction of which the numerator shall be
the sum of the number of Shares outstanding at the close of business on
such record date plus the total number of Shares constituting such
dividend or other distribution and of which the denominator shall be the
number of Shares outstanding at the close of business on such record date.
Such adjustment shall be made successively whenever any such dividend or
distribution is made and shall become effective immediately after such
record date. For the purpose of this clause (1), the number of Shares at
any time outstanding shall not include Shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on
Shares held in the treasury of the Company. If any dividend or
distribution of the type described in this clause is declared but not so
paid or made, the Conversion Rate shall again be adjusted to the
Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
|
||||
|
(2)
|
If
the Company shall subdivide its outstanding Shares into a greater number
of Shares, or combine its outstanding Shares into a smaller number of
Shares, the Conversion Rate in effect immediately preceding the day upon
which such subdivision or combination becomes effective shall be, in the
case of a subdivision of Shares, proportionately increased and, in the
case of a combination of Shares, proportionately reduced. Such adjustment
shall be made successively whenever any such subdivision or combination of
the Shares occurs and shall become effective immediately after the date
upon which such subdivision or combination becomes effective.
|
|||
|
(3)
|
If
the Company shall issue rights or warrants to all holders of its
outstanding Shares entitling them (for a period expiring within
45 days after such issuance) to subscribe for or purchase Shares (or
securities convertible into Shares) at a price per Share (or having a
conversion price per Share) less than the Market Price per Share (as
determined in accordance with clause (9) of this Section 4.5(a))
on the record date for the determination of shareholders entitled to
receive such rights or warrants, the Conversion Rate in effect immediately
prior thereto shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately
preceding such record date by a fraction of which the numerator shall be
the number of Shares outstanding at the close of business on such record
date plus the number of additional Shares offered (or into which the
convertible securities so offered are convertible) and of which the
denominator shall be the number of Shares
outstanding
|
-63-
|
at
the close of business on such record date plus the number of Shares which
the aggregate offering price of the total number of Shares so offered for
subscription or purchase (or the aggregate conversion price of the
convertible securities so offered for subscription or purchase, which
shall be determined by multiplying the number of Shares issuable upon
conversion of such convertible securities by the conversion price per
Share pursuant to the terms of such convertible securities) would purchase
at the Market Price per Share on such record date. Such adjustment shall
be made successively whenever any such rights or warrants are issued, and
shall become effective immediately after such record date. To the extent
that Shares (or securities convertible into Shares) are not delivered
after the expiration of such rights or warrants, the Conversion Rate shall
be readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on
the basis of delivery of only the number of Shares actually delivered. If
such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if the
record date for the determination of shareholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights
or warrants entitle the shareholders to subscribe for or purchase Shares
at a price less than the Market Price per Share and in determining the
aggregate offering price of the total number of Shares so offered, there
shall be taken into account any consideration received by the Company for
such rights or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
|
||||
|
(4)
|
If
the Company shall make a distribution to all holders of Shares of shares
in the capital of the Company, other than Shares, or evidences of
indebtedness or other assets of the Company, including securities (but
excluding (x) any issuance of rights or warrants for which an adjustment
was made pursuant to Section 4.5(a)(3), and (y) any dividend or
distribution paid exclusively in cash for which an adjustment was made
pursuant to Section 4.5(a)(6)) (the "Distributed
Securities"), then in each such case (unless the Company
distributes such Distributed Securities for distribution to the Holders of
Securities on such dividend or distribution date (as if each Holder had
converted such Security into Shares, immediately preceding the record date
with respect to such distribution)) the Conversion Rate in effect
immediately preceding the record date fixed for the determination of
shareholders entitled to receive such dividend or distribution shall be
adjusted so that the same shall equal the rate
determined
|
|
|
-64-
|
by
multiplying the Conversion Rate in effect immediately preceding such
record date by a fraction of which the numerator shall be the Market Price
per Share on such record date and of which the denominator shall be the
Market Price per Share on such record date less the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and which shall be evidenced
by an Officers' Certificate delivered to the Trustee) on such record date
of the portion of the Distributed Securities so distributed applicable to
one Share (determined on the basis of the number of Shares outstanding at
the close of business on such record date). Such adjustment shall be made
successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such distribution. In the event that such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.
|
||||
|
If
the then fair market value (as so determined) of the portion of the
Distributed Securities so distributed applicable to one Share is equal to
or greater than the Market Price per Share on such record date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each
Holder of a Security shall have the right to receive upon conversion the
amount of Distributed Securities so distributed that such Holder would
have received had such Holder converted each Security on such record date;
provided, however, that if, prior to the date that is five years plus one
day from the last Original Issue Date, Holders would otherwise be entitled
to receive, upon conversion of the Securities, any Ineligible
Consideration, such Holders shall not be entitled to receive such
Ineligible Consideration but the Company shall have the right (at the sole
option of the Company) to deliver either such Ineligible Consideration or
"prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) of
the Tax Act (or any successor provision) with a market value equal to the
market value of such Ineligible Consideration. If the Board of Directors
determines the fair market value of any distribution for purposes of this
Section 4.5(a)(4) by reference to the actual or when issued trading
market for any securities, it must in doing so consider the prices in such
market over the same period used in computing the Market Price of the
Shares.
|
||||
|
Notwithstanding
the foregoing, if the securities distributed by the Company to all holders
of its Shares consist of Capital Stock of, or similar equity interests in,
a Subsidiary or other business unit of the Company (the "Spinoff Securities"),
the Conversion Rate shall
|
-65-
|
be
adjusted, unless the Company makes an equivalent distribution to the
Holders of Securities, so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect on the record date
fixed for the determination of shareholders entitled to receive such
distribution by a fraction, the numerator of which shall be the sum of (A)
the average Closing Price of one Share over the ten consecutive Trading
Day period (the "Spinoff
Valuation Period") commencing on and including the fifth Trading
Day after the date on which ex-dividend trading commences for such
distribution on the TSX or such other national or regional exchange or
market on which the Shares are then listed or quoted and (B) the product
of (i) the average closing price (calculated in substantially the
same way as the Closing Price is calculated for the Shares) over the
Spinoff Valuation Period of the Spinoff Securities or, if no such prices
are available, the fair market value of the Spinoff Securities as
reasonably determined by the Board of Directors (which determination shall
be conclusive and shall be evidenced by an Officers' Certificate delivered
to the Trustee) multiplied by (ii) the number of Spinoff Securities
distributed in respect of one Share and the denominator of which shall be
the average Closing Price of one Share over the Spinoff Valuation Period,
such adjustment to become effective immediately preceding the opening of
business on the fifteenth Trading Day after the date on which ex-dividend
trading commences; provided, however, that the Company may in lieu of the
foregoing adjustment elect to make adequate provision so that each Holder
of Securities shall have the right to receive upon conversion thereof the
amount of such Spinoff Securities that such Holder of Securities would
have received if such Securities had been converted on the record date
with respect to such distribution; provided, however, that if, prior to
the date that is five years plus one day from the last Original Issue
Date, Holders would otherwise be entitled to receive, upon conversion of
the Securities, any Ineligible Consideration, such Holders shall not be
entitled to receive such Ineligible Consideration but the Company shall
have the right (at the sole option of the Company) to deliver either such
Ineligible Consideration or "prescribed securities" for the purposes of
clause 212(1)(b)(vii)(E) of the Tax Act (or any successor provision) with
a market value equal to the market value of such Ineligible
Consideration.
|
||||
|
(5)
|
With
respect to any rights or warrants (the "Rights") that may be
issued or distributed pursuant to any rights plan that the Company
implements after the date of this Indenture (each a "Rights Plan"), in lieu
of any adjustment required by any other provision of this Section 4.5
upon conversion of the Securities into Shares, to the extent that such
Rights Plan is in effect upon such
|
-66-
|
conversion,
the Holders of Securities will receive, as a result of becoming a holder
of Shares and not as additional consideration for the conversion of the
Securities, with respect to the Shares issued upon conversion, the Rights
described therein (whether or not the Rights have separated from the
Shares at the time of conversion), subject to the limitations set forth in
and in accordance with any such Rights Plan; provided that if, at the time
of conversion, however, the Rights have separated from the Shares in
accordance with the provisions of the Rights Plan so that Holders would
not be entitled to receive any rights in respect of the Shares issuable
upon conversion of the Securities as a result of the timing of the
Conversion Date, the Conversion Rate will be adjusted as if the Company
distributed to all holders of Shares Distributed Securities as provided in
the first paragraph of clause (4) of this Section 4.5(a),
subject to appropriate readjustment in the event of the expiration,
termination, repurchase or redemption of the Rights. Any distribution of
rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this
paragraph shall not constitute a distribution of rights or warrants
pursuant to this Section 4.5(a). Other than as specified in this
clause (5) of this Section 4.5(a), there will not be any
adjustment to the Conversion Rate as the result of the issuance of any
Rights, the distribution of separate certificates representing such
Rights, the exercise or redemption of such Rights in accordance with any
Rights Plan or the termination or invalidation of any Rights.
|
||||
|
(6)
|
If
the Company shall, by dividend or otherwise, at any time distribute (a
"Triggering
Distribution") to all holders of its Shares a payment consisting
exclusively of cash (excluding any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary) the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying such Conversion
Rate in effect immediately preceding the close of business on the record
date for such Triggering Distribution (a "Determination Date") by
a fraction of which the numerator shall be such Market Price per Share on
the Determination Date and the denominator of which shall be the Market
Price per Share on the Determination Date less the amount of such cash
dividend or distribution applicable to one Share (determined on the basis
of the number of Shares outstanding at the close of business on the
Determination Date), such increase to become effective immediately
preceding the opening of business on the day following the date on which
the Triggering Distribution is paid. If the amount of cash dividend or
distribution applicable to one Share is equal to or greater than
the
|
-67-
|
Market
Price per Share on the Determination Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of a
Security shall have the right to receive upon conversion the amount of
cash so distributed that such Holder would have received had such Holder
converted each Security on such Determination Date; provided, however,
that if, prior to the date that is five years plus one day from the last
Original Issue Date, Holders would otherwise be entitled to receive, upon
conversion of the Securities, any amount of cash pursuant to this Section
4.5(a)(6), such Holders shall not be entitled to receive such amount of
cash but the Company shall have the right (at the sole option of the
Company) to deliver either such amount of cash or "prescribed securities"
for the purposes of clause 212(1)(b)(vii)(E) of the Tax Act (or any
successor provision) with a market value equal to the amount of cash to
which the Holders would otherwise have been entitled. In the event that
such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in
effect if such divided or distribution had not been declared.
|
||||
|
(7)
|
If
any tender offer made by the Company or any of its Subsidiaries for all or
any portion of Shares shall expire, then, if the tender offer shall
require the payment to shareholders of consideration per Share having a
fair market value (determined as provided below) that exceeds the Closing
Price per Share on the Trading Day next succeeding the last date (the
"Expiration Date")
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the "Expiration Time"), the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately
preceding the close of business on the Expiration Date by a fraction of
which the numerator shall be the sum of (A) the fair market value of the
aggregate consideration (the fair market value as determined by the Board
of Directors, whose determination shall be conclusive evidence of such
fair market value and which shall be evidenced by an Officers Certificate
delivered to the Trustee) payable to shareholders based on the acceptance
(up to any maximum specified in the terms of the tender offer) of all
Shares validly tendered and not withdrawn as of the Expiration Time (the
Shares deemed so accepted, up to any such maximum, being referred to as
the "Purchased
Shares") and (B) the product of the number of Shares outstanding
(less any Purchased Shares and excluding any Shares held in the treasury
of the Company) at the Expiration Time and the Closing Price per Share on
the Trading Day next succeeding the Expiration Date and the denominator of
which
|
-68-
|
shall
be the product of the number of Shares outstanding (including Purchased
Shares but excluding any Shares held in the treasury of the Company) at
the Expiration Time multiplied by the Closing Price per Share on the
Trading Day next succeeding the Expiration Date, such increase to become
effective immediately preceding the opening of business on the day
following the Expiration Date. In the event that the Company is obligated
to purchase Shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would have been in
effect based upon the number of Shares actually purchased, if any. If the
application of this clause (7) of Section 4.5(a) to any tender
offer would result in a decrease in the Conversion Rate, no adjustment
shall be made for such tender offer under this
clause (7).
|
||||
|
(8)
|
For
purposes of this Section 4.5, the term "tender offer" shall mean
and include tender offers, take over bids and exchange offers, all
references to "purchases" of Shares in
tender offers (and all similar references) shall mean and include the
purchase of Shares in tender offers and the acquisition of Shares pursuant
to take over bids or exchange offers, and all references to "tendered Shares" (and
all similar references) shall mean and include Shares tendered in both
tender offers, take over bids and exchange offers.
|
|||
|
(9)
|
For
the purpose of any computation under this Section 4.5(a), "Market Price" shall mean
the average of the Closing Prices for each of the ten consecutive Trading
Days ending on the earlier of such date of determination and the day
before the "ex-date" with respect to the issuance, distribution,
subdivision or combination requiring such computation. For purposes of
this paragraph, the term "ex-date" when used with respect to any issuance,
distribution or subdivision means the first date on which the seller of
the Shares retains the right to a pending issuance or distribution on the
relevant exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or
distribution.
|
|||
|
(b)
|
In
any case in which this Section 4.5 shall require that an adjustment
be made following a record date, a Determination Date or Expiration Date,
as the case may be, established for the purposes specified in this
Section 4.5, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the
certificate described in Section 4.7) issuing to the Holder of any
Security converted after such record date, Determination Date or
Expiration Date
|
|||
-69-
|
the
Shares and other Capital Stock of the Company issuable upon such
conversion over and above the Shares and other Capital Stock of the
Company (or other cash, property or securities, as applicable) issuable
upon such conversion only on the basis of the Conversion Rate prior to
adjustment; and, in lieu of any cash, property or securities the issuance
of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the
Company of the right to receive such cash, property or securities;
provided, however, that if, prior to the date that is five years plus one
day from the last Original Issue Date, Holders would otherwise be entitled
to receive, upon conversion of the Securities, any Ineligible
Consideration, such Holders shall not be entitled to receive such
Ineligible Consideration but the Company shall have the right (at the sole
option of the Company) to deliver either such Ineligible Consideration or
"prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) of
the Tax Act (or any successor provision) with a market value equal to the
market value of such Ineligible Consideration. If any distribution in
respect of which an adjustment to the Conversion Rate is required to be
made as of the record date, Determination Date or Expiration Date
therefore is not thereafter made or paid by the Company for any reason,
the Conversion Rate shall be readjusted to the Conversion Rate which would
then be in effect if such record date had not been fixed or such record
date, Determination Date or Expiration Date had not occurred.
|
|||
|
(c)
|
For
purposes of this Section 4.5, "record date" shall mean, with respect
to any dividend, distribution or other transaction or event in which the
holders of Shares have the right to receive any cash, securities or other
property or in which the Shares (or other applicable security) are
exchanged or converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders entitled to
receive such cash, security or other property (whether or not such date is
fixed by the Board of Directors or by statute, contract or
otherwise).
|
||
|
(d)
|
If
one or more event occurs requiring an adjustment be made to the Conversion
Rate for a particular period, adjustments to the Conversion Rate shall be
determined by the Company's Board of Directors to reflect the combined
impact of such Conversion Rate adjustment events, as set out in this
Section 4.5, during such period.
|
||
|
4.6
|
No
Adjustment.
|
||
|
(a)
|
No
adjustment in the Conversion Rate shall be required if Holders may
participate in the transactions set forth in Section 4.5 above (to
the same extent as if the Securities had been converted into Shares
immediately preceding such transactions) without converting the Securities
held by such Holders.
|
||
-70-
|
(b)
|
No
adjustment in the Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Conversion
Rate as last adjusted; provided, however, that any adjustments which would
be required to be made but for this Section 4.6(b) shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article IV shall be made to the nearest cent or to
the nearest one-ten thousandth of a share, as the case may be, with one
half cent and 0.00005 of a share, respectively, being rounded
upward.
|
||
|
(c)
|
No
adjustment in the Conversion Rate shall be required for issuances of
Shares pursuant to a Company plan for reinvestment of dividends or
interest or for a change in the par value or a change to no par value of
the Shares.
|
||
|
(d)
|
To
the extent that the Securities become, on or after the date that is five
years plus one day from the last Original Issue Date or following the
option of the Company, a successor or acquiror to deliver Ineligible
Consideration, convertible into cash, no adjustment need be made
thereafter as to the cash.
|
||
|
4.7
|
Notice of
Adjustment.
|
||
Whenever
the Conversion Rate or conversion privilege is required to be adjusted pursuant
to this Indenture, the Company shall first promptly provide the TSX or such
other exchange on which the Securities are then listed written notice of the
adjustment. The Company shall then also promptly mail to Holders a notice of the
adjustment and file with the Trustee an Officers' Certificate briefly stating
the facts requiring the adjustment and the manner of computing it. Failure to
provide or mail any such notices or any defect therein shall not affect the
validity of any such adjustment. Unless and until the Trustee shall receive an
Officers' Certificate setting forth an adjustment of the Conversion Rate, the
Trustee may assume without inquiry that the Conversion Rate has not been
adjusted and that the last Conversion Rate of which it has knowledge remains in
effect.
|
4.8
|
Notice of Certain
Transactions.
|
In
the event that there is a dissolution or liquidation of the Company, the Company
shall mail to Holders and file with the Trustee a notice stating the proposed
effective date. The Company shall mail such notice at least 20 days before
such proposed effective date. Failure to mail such notice or any defect therein
shall not affect the validity of any transaction referred to in this
Section 4.8.
-71-
|
4.9
|
Effect of
Reclassification, Consolidation, Amalgamation, Merger or Sale on
Conversion Privilege.
|
|||
|
(a)
|
If
any of the following shall occur, namely:
|
|||
|
(1)
|
any
reclassification, recapitalization or other change of Shares issuable upon
conversion of the Securities (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination or any other transaction or event
for which an adjustment is provided in Section 4.5);
|
|||
|
(2)
|
any
statutory share exchange, consolidation, amalgamation, arrangement, merger
or other combination to which the Company is a party other than a merger
in which the Company is the continuing corporation and which does not
result in any reclassification of, or a change (other than in par value,
or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination) in outstanding Shares;
or
|
|||
|
(3)
|
any
sale or conveyance of all or substantially all the property and assets of
the Company, directly or indirectly, to any person,
|
|||
|
then
the Company and any such successor, purchasing or transferee corporation,
as the case may be, shall, as a condition precedent to such
reclassification, recapitalization, change, combination, statutory share
exchange, consolidation, amalgamation, arrangement, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture to
this Indenture providing that the Holder, unless the Company makes an
election under Section 3.9(d) (in which case the Securities shall be
convertible into Public Acquiror Shares), convert such Security into the
kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, recapitalization,
change, combination, statutory share exchange, consolidation, merger,
amalgamation, arrangement, sale or conveyance by a holder of the number of
Shares deliverable upon conversion of such Security immediately preceding
such reclassification, recapitalization, change, combination, statutory
share exchange, consolidation, merger, amalgamation, arrangement, sale or
conveyance (assuming such holder of Shares did not exercise any right of
election as to the kind or amount of stock, other securities or other
property or assets, including cash, receivable upon such transaction, and
provided that if the kind or amount of stock, other securities or other
property or assets receivable upon such transaction is not the same for
each Share in respect of which such rights of election shall not have been
exercised, then the kind and amount shall be deemed to be the kind and
amount receivable per Share by a plurality of the nonelecting shares);
provided, however, that if, prior to the date that is five years plus one
day from the last Original Issue
|
||||
-72-
|
Date,
Holders would otherwise be entitled to receive, upon conversion of the
Securities, any Ineligible Consideration, such Holders shall not be
entitled to receive such Ineligible Consideration but the Company or the
successor or acquiror, as the case may be, shall have the right (at the
sole option of the Company or the successor or acquiror, as the case may
be) to deliver either such Ineligible Consideration or "prescribed
securities" for the purposes of clause 212(1)(b)(vii)(E) of the Tax Act
(or any successor provision) with a market value equal to the market value
of such Ineligible Consideration. The Company shall give notice to the
Holders at least 30 days prior to the effective date of such
transaction in writing and by a press release on a national newswire
stating the consideration into which the Securities will be convertible
after the effective date of such transaction. After such notice, the
Company or the successor or acquirer, as the case may be, may not change
the consideration to be delivered upon conversion of the Security except
in accordance with the this Article IV. Such supplemental indenture shall
provide for adjustments of the Conversion Rate and other appropriate
numerical thresholds which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this
Article IV. If, in the case of any such consolidation, merger,
amalgamation, arrangement, combination, statutory share exchange, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Shares include Shares or other
securities and property of a person other than the successor, purchasing
or transferee corporation, as the case may be, in such consolidation,
merger, amalgamation, arrangement, combination, statutory share exchange,
sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.
The provisions of this Section 4.9 shall similarly apply to
successive reclassifications, changes, combinations, consolidations,
mergers, amalgamations, arrangements, sales or conveyances. If this
Section 4.9(a) applies to any event or occurrence, Section 4.5
shall not apply.
|
||||
|
(b)
|
In
the event the Company shall execute a supplemental indenture pursuant to
this Section 4.9, the Company shall promptly file with the
Trustee;
|
|||
|
(1)
|
an
Officers' Certificate briefly stating the reasons therefore, the kind or
amount of shares of stock or other securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, recapitalization, change,
combination, consolidation, merger, amalgamation, arrangement, sale or
conveyance, any adjustment to
|
|||
-73-
|
be
made with respect thereto and that all conditions precedent have been
complied with; and
|
||||
|
(2)
|
an
Opinion of Counsel that all conditions precedent thereto and hereunder
have been complied with, and shall promptly mail notice thereof to all
Holders. Failure to mail such notice or any defect therein shall not
affect the validity of such transaction and such supplemental
indenture.
|
|||
|
4.10
|
Trustee's
Disclaimer.
|
|||
|
(a)
|
The
Trustee shall have no duty to determine when an adjustment under this
Article IV should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the
correctness of any such adjustment, and shall be protected in acting and
relying upon, an Officers' Certificate and Opinion of Counsel, including
the Officers' Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.7. The
Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee
shall not be responsible for the Company's failure to comply with any
provisions of this Article IV.
|
|||
|
(b)
|
The
Trustee shall not be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture executed
pursuant to Section 4.9, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the
Officers' Certificate and Opinion of Counsel, with respect thereto which
the Company is obligated to file with the Trustee pursuant to
Section 4.9.
|
|||
|
4.11
|
Voluntary
Increase.
|
|||
The
Company from time to time may increase the Conversion Rate, to the extent
permitted by law, if the Board of Directors determines that such increase would
be in the best interests of the Company, by any amount for any period of time if
the period is at least 20 days. The increase is irrevocable during such
period and the Company will give at least 15 days notice of such increase
to the Trustee and Holders.
|
4.12
|
Payment of Cash in
Lieu of Shares.
|
||
|
(a)
|
At
the sole option of the Company, in lieu of delivery of some or all of the
Shares otherwise issuable upon notice of conversion of any Securities,
Holders surrendering Securities for conversion shall receive an amount of
cash to be delivered per Security equal to (i) the number of Shares in
respect of which the cash payment is being made, multiplied by (ii) the
average of the Closing Price of the Shares for each of the ten consecutive
Trading Days of the Conversion Reference Period, provided that after the
consummation of a Change of Control in which the consideration
is
|
||
-74-
|
comprised
entirely of cash, the amount used in clause (ii) of this paragraph will be
the cash price per Share received by holders of Shares in such Change of
Control. The Company will deliver such cash and any Shares, together with
any cash payable for fractional shares, to such Holder in accordance with
Section 4.2(a).
|
|||
|
(b)
|
The
Company will give notice of its election to deliver all or part of the
conversion consideration in cash to the Holder converting its Securities
within two Business Days of receipt by the Company of the Holder's notice
of conversion unless the Company has already informed Holders of
Securities of its election in connection with the optional redemption of
Securities under Article III.
|
ARTICLE
V
COVENANTS
|
5.1
|
Payment
of Securities.
|
||
|
(a)
|
The
Company shall promptly make all payments in respect of the Securities on
the dates and in the manner provided in the Securities and this Indenture.
A payment of principal or interest shall be considered paid on the date it
is due if the Paying Agent (other than the Company) holds by 11:00 a.m.,
Toronto time, on that date money and/or Shares, if applicable, deposited
by or on behalf of the Company sufficient to make the payment. Subject to
Section 4.2, accrued and unpaid interest on any Security that is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid in cash to the Person in whose name that
Security 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. The principal amount, together with accrued and unpaid
interest thereon, Redemption Price, Put Right Purchase Price or Change of
Control Repurchase Price, if payable, shall be considered paid on the
applicable date due if on such date (or, in the case of Put Right Purchase
Price or Change of Control Repurchase Price, on the Business Day following
the applicable Put Right Purchase Date or Change of Control Repurchase
Date, as the case may be) the Trustee or the Paying Agent holds, in
accordance with this Indenture, money and/or Shares, if applicable,
sufficient to pay all such amounts then due. The Company shall, to the
fullest extent permitted by law, pay interest in immediately available
funds and/or Shares, if applicable, on overdue principal amount and
interest at the annual rate borne by the Securities compounded
semi-annually, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest
shall be payable on demand.
|
||
|
(b)
|
Payment
of the principal of and interest, if any, on the Securities shall be made
at the offices or agencies of the Company maintained for
that
|
||
-75-
|
purpose
in Cities of Montreal, Toronto, Vancouver, Calgary, Winnipeg and Halifax
(which shall initially be at the address set forth in Section 2.5(c))
or at the Corporate Trust Office of the Trustee in such coin or currency
of Canada as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the Company
payment of interest may be made by cheque mailed to the address of the
Person entitled thereto as such address appears in the Register; provided
further that a Holder with an aggregate principal amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at
the election of such Holder if such Holder has provided wire transfer
instructions to the Trustee at least 10 Business Days prior to the payment
date. Any wire transfer instructions received by the Trustee will remain
in effect until revoked by the Holder.
|
|||
|
(c)
|
Notwithstanding
Section 5.1(b), if Securities are represented by one or more Global
Securities, interest payments on Global Securities will be made by wire
transfer on the Interest Payment Date and delivered to the Depository or
its nominee, as the case may be. Principal amount payments on Global
Securities will be made by wire transfer delivered to the Depository or
its nominee, as the case may be, at maturity against surrender to the
Trustee of the Global Security. As long as the Depository or the nominee
is the registered owner of a Global Security, the Depository or the
nominee, as the case may be, will be considered the sole owner of the
Global Security for the purposes of receiving payments of principal and
interest on the Security and for all other purposes under the Trust
Indenture and the Security. The forwarding of any such payments of
principal and interest to the Depository or the nominee shall
satisfy and discharge the liability in respect of such amounts on such
Security to the extent of the sum represented thereby (plus the amount of
any tax deducted or withheld).
|
||
|
5.2
|
Reporting
Requirements
|
||
|
(a)
|
The
Company shall file with the Trustee within 15 days after the filing
thereof with securities commissions or similar regularoty authorities in
each of the provinces of Canada, copies of all reports and other
information and documents that the Company is required to file with such
securities commissions or similar regulatory authorities and deliver to
the Holders; provided however that any reports, information and documents
filed on The System for Electronic Document Analysis and Retrieval (SEDAR)
shall be deemed to be filed with the Trustee. The Company will provide
copies of such reports, information and documents to Holders upon
request.
|
||
|
(b)
|
Delivery
of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein
or
|
||
-76-
|
determinable
from information contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
|
|||
|
5.3
|
Compliance
Certificates.
|
||
The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending
December 31, 2005), an Officers' Certificate as to the signer's knowledge
of the Company's compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any
Default or Event of Default. If such signer knows of such a Default or Event of
Default, the Officers' Certificate shall describe the Default or Event of
Default and the efforts to remedy the same. For the purposes of this
Section 5.3, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
|
5.4
|
Further Instruments
and Acts.
|
Upon
request of the Trustee, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purposes of this Indenture.
|
5.5
|
Maintenance of
Corporate Existence.
|
Subject
to Article VI, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
|
5.6
|
Rule 144A
Information Requirement.
|
Within
the period prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor
provision), the Company covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, upon
the request of any Holder or beneficial Holder of the Securities make available
to such Holder or beneficial Holder of Securities or any Shares issued upon
conversion thereof which continue to be Restricted Securities in connection with
any sale thereof and any prospective purchaser of Securities or such Shares
designated by such Holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act and it will take such
further action as any Holder or beneficial Holder of such Securities or such
Shares may reasonably request, all to the extent required from time to time to
enable such Holder or beneficial holder to sell its Securities or Shares without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such rule may be amended from time to time.
Whether a person is a beneficial holder shall be determined by the
Company.
|
5.7
|
Stay, Extension and
Usury Laws.
|
The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company
-77-
from
paying all or any portion of the principal of or accrued but unpaid interest on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture, and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been
enacted.
|
5.8
|
Payment of Additional
Amounts.
|
All
payments made by or on behalf of the Company under or with respect to the
Securities (including, without limitation, any penalties, interest and other
liabilities related thereto) will be made free and clear of and without
withholding or deduction for, or on account of, any present or future tax, duty,
levy, impost, assessment or other governmental charge (including, without
limitation, 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, including without limitation any taxes imposed under Part XIII of the
Tax Act (or any successor legislation of similar effect) ("Canadian Taxes"), unless the
Company is required by law or the interpretation or administration thereof, to
withhold or deduct any amounts for, or on account of, Canadian Taxes. 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 any withholding or deduction required to be made in
respect of Additional Amounts) will not be less than the amount the Holder would
have received if such Canadian Taxes had not been withheld or deducted and
similar payment (the term "Additional Amounts" shall also
include any such similar payments) will also be made by the Company to Holders
(other than Excluded Holders) of Securities that are not subject to withholding
but are required to pay tax directly on amounts otherwise subject to
withholding; provided, however, that no Additional Amounts will be payable with
respect to:
|
(a)
|
a
payment made to a Holder or former Holder of Securities (an "Excluded Holder") in
respect of the beneficial owner thereof:
|
|||
|
(i)
|
with
which the Company does not deal at arm's length (within the meaning of the
Tax Act (or any successor legislation of similar effect)) at the time of
making such payment;
|
|||
|
(ii)
|
that
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 (provided that in the case of any imposition or change
in any such certification, identification, information, documentation or
other reporting requirement which
applies
|
|||
-78-
|
generally
to Holders of Securities who are not residents of Canada, at least sixty
(60) days prior to the effective date of any such imposition or change,
the Company shall give written notice, in the manner provided in this
Indenture, to the Trustee and the Holders of the Securities then
outstanding of such imposition or change, as the case may be, and provide
the Trustee and such Holders with such forms or documentation, if any, as
may be required to comply with such certification, identification,
information, documentation, or other reporting requirement);
or
|
||||
|
(iii)
|
that
is subject to such Canadian Taxes by reason of its carrying on business in
or otherwise being connected with Canada or any province or territory
thereof otherwise than by the mere holding of such Securities or the
receipt of payments or exercise of any enforcement rights, thereunder;
or
|
|||
|
(b)
|
any
estate, inheritance, gift, sales, excise, transfer, personal property or
similar tax, assessment or governmental charge ("Excluded
Taxes").
|
|||
The
Company will (1) make such withholding or deduction and (2) remit the full
amount deducted or withheld to the relevant authority in accordance with
applicable law.
The
Company will furnish to the Trustee, within thirty (30) days after the date the
payment of any Canadian Taxes is due pursuant to applicable law in respect of
such Securities, certified copies of tax receipts evidencing such payment by the
Company.
The
Company will indemnify and hold harmless each Holder of any Securities (other
than an Excluded Holder or with respect to Excluded Taxes) and upon written
request reimburse each such Holder for the amount of:
|
(a)
|
any
Canadian Taxes so levied or imposed and paid by such Holder as a result of
the failure of the Company to withhold or deduct any amounts for, or on
account of, Canadian Taxes under this Section 5.8.
|
||
|
(b)
|
any
liability (including penalties, interest and expenses) arising therefrom
or with respect thereto; and
|
||
|
(c)
|
any
Canadian Taxes levied or imposed and paid by the Holder with respect to
any reimbursement under clause (a) or (b) above.
|
Whenever
in this Indenture there is mentioned, in any context, the payment of principal
and interest or any other amount payable under or with respect to any Security,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect
thereof.
-79-
Anything
in this Indenture to the contrary notwithstanding, the covenants and provisions
of this Section 5.8 shall survive any termination or discharge of this
Indenture, and the repayment of all or any of the Securities, and shall remain
in full force and effect.
|
5.9
|
Maintenance of Office
or Agency.
|
The
Company will maintain an office or agency of the Trustee, Registrar and Paying
Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, purchase or
redemption and where notices and demands to or upon the company in respect of
the Securities and this Indenture may be served. The Corporate Trust Office
shall initially be one such office or agency for all of the aforesaid purposes.
Another such office or agency shall be the one referred to in
Section 5.1(b). The Company shall give prompt written notice to the Trustee
of the location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 12.1. The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency.
ARTICLE
VI
CONSOLIDATION;
MERGER; CONVEYANCE; TRANSFER OR LEASE
|
6.1
|
Company may
Consolidate, Etc., Only on Certain Terms.
|
|||
|
(a)
|
The
Company may not, without the consent of the Holders, consolidate with or
amalgamate or merge with or into any Person or sell, convey, transfer or
lease all or substantially all of the properties and assets of the Company
to another Person unless:
|
|||
|
(1)
|
The
Person formed by such consolidation or into which the Company is
amalgamated or merged, or the Person which acquires by sale, conveyance,
transfer or lease all or substantially all of the properties and assets of
the Company is a corporation incorporated and existing under the laws of
Canada or any province or territory thereof or the laws of the United
States and such corporation (if other than the Company) expressly assumes,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the obligations of the
Company under the Securities and this Indenture and the performance or
observance of every covenant and provision of this Indenture and the
Securities required on the part of the Company to be performed or observed
and the conversion rights shall be provided for in accordance with Article
IV, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee, by the Person (if other than the
Company) formed by such consolidation or
into
|
|||
-80-
|
which
the Company shall have been merged or by the Person which shall have
acquired the Company's assets;
|
||||
|
(2)
|
after
giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
|
|||
|
(3)
|
if
the Company will not be the resulting or surviving corporation, the
Company shall have, at or prior to the effective date of such
consolidation, amalgamation, merger or sale, conveyance, transfer or
lease, delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer complies
with this Article and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture complies
with this Article, and that all conditions precedent herein provided for
relating to such transaction have been complied with.
|
|||
|
(b)
|
For
purposes of the foregoing, the sale, conveyance, transfer or lease (in a
single transaction or a series of related transactions) of the properties
and assets of one or more Subsidiaries of the Company (other than to the
Company or another wholly-owned Subsidiary of the Company), which, if such
properties or assets were directly owned by the Company, would constitute
all or substantially all of the properties and assets of the Company and
its Subsidiaries, taken as a whole, shall be deemed to be the sale,
conveyance, transfer or lease of all or substantially all of the
properties and assets of the Company.
|
|||
|
6.2
|
Successor
Substituted.
|
|||
Upon
any consolidation of the Company with, or amalgamation or merger of the Company
into, any other Person or any sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company and its
Subsidiaries, taken as a whole, in accordance with Section 6.1, the
successor Person formed by such consolidation or into which the Company is
amalgamated or merged or to which such sale, conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, and except for obligations the predecessor Person may have
under a supplemental indenture, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE
VII
DEFAULT
AND REMEDIES
|
7.1
|
Events of
Default.
|
||
|
(a)
|
An
"Event of Default"
shall occur if:
|
||
-81-
|
(1)
|
the
Company shall fail to pay when due the principal amount or any Redemption
Price, Put Right Purchase Price or Change of Control Repurchase Price of
any Security when the same becomes due and payable whether at the Final
Maturity Date, upon redemption, repurchase, acceleration or otherwise;
or
|
||||
|
(2)
|
the
Company shall fail to pay an installment of cash interest, if any, on any
of the Securities, which failure continues for 30 days after the date
when due; or
|
||||
|
(3)
|
the
Company shall fail to deliver when due all cash and Shares or other
consideration, including any Make-Whole Premium, deliverable upon
conversion of the Securities, which failure continues for 15 days;
or
|
||||
|
(4)
|
the
Company shall fail to perform or observe any other term, covenant or
agreement contained in the Securities or this Indenture, including,
without limitation, the requirement to make a Change of Control Purchase
Offer for a period of 30 days after receipt by the Company of a
Notice of Default specifying such failure; or
|
||||
|
(5)
|
the
Company defaults in the payment of principal when due or resulting in
acceleration of other Indebtedness of the Company for borrowed money where
the aggregate principal amount with respect to which the default or
acceleration has occurred exceeds $50 million and such acceleration
has not been rescinded or annulled or such Indebtedness repaid within a
period of 30 days after receipt of a Notice of Default, provided that
if any such default is cured, waived, rescinded or annulled, then the
Event of Default by reason thereof would be deemed not to have occurred;
or
|
||||
|
(6)
|
the
Company pursuant to or within the meaning of any Bankruptcy
Law:
|
||||
|
(A)
|
commences
as a debtor a voluntary case or proceeding; or
|
||||
|
(B)
|
consents
to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case against it; or
|
||||
|
(C)
|
consents
to the appointment of a Receiver of it or for all or substantially all of
its property; or
|
||||
|
(D)
|
makes
a general assignment for the benefit of its creditors; or
|
||||
|
(E)
|
files
a petition in bankruptcy or answer or consent seeking reorganization or
relief; or
|
||||
-82-
|
(F)
|
consents
to the filing of such a petition or the appointment of or taking
possession by a Receiver; or
|
||||
|
(7)
|
a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
|
||||
|
(A)
|
grants
relief against the Company in an involuntary case or proceeding or
adjudicates the Company insolvent or bankrupt; or
|
||||
|
(B)
|
appoints
a Receiver of the Company or for all or substantially all of the property
of the Company; or
|
||||
|
(C)
|
orders
the winding up or liquidation of the Company;
|
||||
|
and
in each case the order or decree remains unstayed and in effect for 60
consecutive days.
|
|||||
|
The
term "Bankruptcy
Law" means the Bankruptcy and Insolvency Act (Canada) (or any
successor thereto), the Companies' Creditors Arrangement Act (Canada) (or
any successor thereto), or ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (or any successor
thereto), any similar Canadian federal or provincial, United States or
foreign law for the relief of debtors. The term "Receiver" means any
receiver (interim or otherwise), trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
|
|||||
|
(b)
|
Notwithstanding
Section 7.1(a) no Event of Default under clauses (4) or (5) of
Section 7.1(a) shall occur until the Trustee notifies the Company in
writing, or the Holders of at least 25% in aggregate principal amount of
the Securities then outstanding notify the Company and the Trustee in
writing, of the Default (a "Notice of Default"), and
the Company does not cure the Default within the time specified in
clause (4) or (5) of Section 7.1(a), as applicable, after
receipt of such notice. A notice given pursuant to this Section 7.1
shall be given by registered or certified mail, must specify the Default,
demand that it be remedied and state that the notice is a Notice of
Default. When any Default under this Section 7.1 is cured, it
ceases.
|
||||
|
(c)
|
The
Company will deliver to the Trustee, within 5 Business Days after becoming
aware of the occurrence of a Default or Event of Default, written notice
thereof.
|
||||
The
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to a Trust Officer with
responsibility for this Indenture at the Corporate Trust Office of the Trustee
by the Company, a Paying Agent, any Holder or any agent of any Holder or unless
a Trust Officer with responsibility for this Indenture acquires actual knowledge
of such Event of Default in the course of performing other duties pursuant to
this Indenture.
-83-
|
7.2
|
Acceleration.
|
If
an Event of Default (other than an Event of Default specified in clause (6) or
(7) of Section 7.1(a)) occurs and is continuing with respect to the
Company, the Trustee may, by notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Securities then outstanding may, by
notice to the Company and the Trustee, declare the principal amount and accrued
and unpaid interest, if any, through the date of declaration on all the
Securities to be immediately due and payable. Upon such a declaration, such
principal amount and such accrued and unpaid interest, if any, shall be due and
payable immediately. If an Event of Default specified in Section 7.1(a)(6)
or (7) occurs in respect of the Company and is continuing, the principal amount
and accrued but unpaid interest, if any, on all the Securities shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may rescind an acceleration and its consequences if (a) all existing
Events of Default, other than the nonpayment of the principal of the Securities
which have become due solely by such declaration of acceleration, have been
cured or waived; (b) to the extent the payment of such interest is lawful,
interest (calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 8.7 have been made. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
|
7.3
|
Other
Remedies.
|
||
|
(a)
|
If
an Event of Default occurs and is continuing, the Trustee may, but shall
not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect payment of the principal amount and accrued and
unpaid interest, if any, on the Securities or to enforce the performance
of any provision of the Securities or this Indenture.
|
||
|
(b)
|
The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to
the extent permitted by applicable law.
|
||
|
7.4
|
Waiver of Defaults and
Events of Default.
|
||
Subject
to Sections 7.7 and 10.2, the Holders of a majority in aggregate principal
amount of the Securities then outstanding by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except an uncured
Default or Event of Default in the payment of the principal of, premium, if any,
or any accrued but unpaid interest on any Security, an uncured failure by the
Company to convert any Securities into Shares or any Default or Event of Default
in respect of any provision of this Indenture or the Securities
which,
-84-
under
Section 10.2, cannot be modified or amended without the consent of the
Holder of each Security affected. When a Default or Event of Default is waived,
it is cured and ceases.
|
7.5
|
Control by
Majority.
|
The
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the time method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve
the Trustee in personal liability unless the Trustee is offered security or
indemnity satisfactory to it; provided, however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
|
7.6
|
Limitations on
Suits.
|
|||
|
(a)
|
A
Holder may not pursue any remedy with respect to this Indenture or the
Securities (except actions for payment of overdue principal, premium, if
any, or interest or for the conversion of the Securities pursuant to
Article IV) unless:
|
|||
|
(1)
|
the
Holder gives to the Trustee written notice of a continuing Event of
Default;
|
|||
|
(2)
|
the
Holders of at least 25% in aggregate principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
|
|||
|
(3)
|
such
Holder or Holders offer to the Trustee reasonable security or indemnity to
the Trustee against any loss, liability or expense;
|
|||
|
(4)
|
the
Trustee does not comply with the request within 60 days after receipt
of the request and the offer of security or indemnity; and
|
|||
|
(5)
|
no
direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Securities then
outstanding.
|
|||
|
(b)
|
No
Holder of a Security shall have any right under any provision of this
Indenture or the Securities to affect, disturb, or prejudice the rights of
another Holder of a Security or to obtain a preference or priority over
another Holder of a Security.
|
|||
|
7.7
|
Rights of Holders to
Receive Payment and to Convert.
|
|||
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal amount and interest, if any, Redemption Price,
Put Right Purchase Price, or Change of Control Repurchase Price in respect of
the Securities held by
-85-
such
Holder, on or after the respective due dates expressed in the Securities and
this Indenture (whether upon redemption, repurchase, or otherwise), and to
convert such Security in accordance with Article IV and receive payment of any
Make-Whole Premium, and to bring suit for the enforcement of any such payment on
or after such respective due dates or for the right to convert in accordance
with Article IV, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.
|
7.8
|
Collection Suit by
Trustee.
|
If
an Event of Default described in clause (1) or (2) of Section 7.1(a)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount owing with respect to the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
|
7.9
|
Trustee may File
Proofs of Claim.
|
The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Securities),
its creditors or its property and shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims
and to distribute the same, and any Receiver in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.7, and
to the extent that such payment of the reasonable compensation, expenses,
disbursements and advances in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other property
which the Holders may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to, or, on behalf of any Holder, to authorize, accept or adopt any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
|
7.10
|
Priorities.
|
|||
|
(a)
|
If
the Trustee collects any money pursuant to this Article VII, it shall pay
out the money in the following order:
|
|||
|
(1)
|
First,
to the Trustee for amounts due under
Section 8.7;
|
|||
-86-
|
(2)
|
Second,
to Holders for amounts due and unpaid on the Securities for the principal
amount and interest, as applicable, ratably, without preference or
priority of any kind, according to such respective amounts due and payable
on the Holders' Securities;
|
|||
|
(3)
|
Third,
to such other Person or Persons, if any, to the extent entitled thereto;
and
|
|||
|
(4)
|
Fourth,
the balance, if any, to the Company.
|
|||
|
(b)
|
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 7.10.
|
|||
|
7.11
|
Appointment of
Co-Trustee.
|
|||
It
is the purpose of this Indenture that there shall be no violation of any law of
any jurisdiction denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in
case of the enforcement thereof on default, or in the case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein granted to the Trustee or
hold title to the properties, in trust, as herein granted or take any action
which may be desirable or necessary in connection therewith, it may be necessary
that the Trustee appoint an individual or institution as a separate or
co-trustee. The following provisions of this Section are adopted to these
ends.
In
the event that the Trustee appoints an additional individual or institution as a
separate or co-trustee, each and every remedy, power, right, claim, demand,
cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or conveyed to the
Trustee with respect thereto shall be exercisable by and vest in such separate
or co-trustee but only to the extent necessary to enable such separate or
co-trustee to exercise such powers, rights and remedies, and only to the extent
that the Trustee by the laws of any jurisdiction is incapable of exercising such
powers, rights and remedies and every covenant and obligation necessary to the
exercise thereof by such separate or co-trustee shall run to and be enforceable
by either of them.
Should
any instrument in writing from the Company be required by the separate or
co-trustee so appointed by the Trustee for more fully and certainly vesting in
and confirming to it such properties, rights, powers, trusts, duties and
obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company; provided, that if an Event
of Default shall have occurred and be continuing, if the Company does not
execute any such instrument within fifteen (15) days after request therefor, the
Trustee shall be empowered as an attorney-in-fact for the Company to execute any
such instrument in the Company's name and stead. In case any separate or
co-trustee or a successor to either shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of such separate or co-trustee, so far as permitted by
law, shall vest in and be exercised by the Trustee until the appointment of a
new trustee or successor to such separate or co-trustee.
-87-
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
|
(a)
|
all
rights and powers, conferred or imposed upon the Trustee shall be
conferred or imposed upon and may be exercised or performed by such
separate trustee or co-trustee; and
|
||
|
(b)
|
no
trustee hereunder shall be personally liable by reason of any act or
omission of any other trustee hereunder.
|
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of this
Article.
Any
separate trustee or co-trustee may at any time appoint the Trustee as its agent
or attorney-in-fact with full power and authority, to the extent not prohibited
by law, to do any lawful act under or in respect of this Indenture on its behalf
and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
Trustee.
ARTICLE
VIII
TRUSTEE
|
8.1
|
Indenture
Legislation.
|
||
|
(a)
|
If
and to the extent that any provision of this Indenture limits, qualifies
or conflicts with a mandatory requirement of Indenture Legislation, such
mandatory requirement shall prevail.
|
||
|
(b)
|
The
Company agrees that it will at all times in relation to this Indenture and
any action to be taken hereunder observe and comply with and be entitled
to the benefits of Indenture Legislation. The Trustee agrees that it will
at all times in relation to this Indenture and any action to be taken
hereunder observe and comply with and be entitled to the benefits of
Indenture Legislation.
|
||
|
8.2
|
Obligations of
Trustee.
|
||
|
(a)
|
The
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent trustee would exercise or use under the circumstances in the
conduct of his or her own affairs.
|
||
|
(b)
|
The
Trustee need perform only those duties as are specifically set forth in
this Indenture and no others.
|
||
-88-
|
In
the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. The Trustee,
however, shall examine any certificates and opinions which by any
provision hereof are specifically required to be delivered to the Trustee
to determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
|
||||
|
(c)
|
The
Trustee may not be relieved from liability for its own gross negligent
action, its own gross negligent failure to act, or its own willful
misconduct, except that:
|
|||
|
(1)
|
this
paragraph does not limit the effect of Section 8.1(b);
|
|||
|
(2)
|
the
Trustee shall not be liable for any error of judgment made in good faith
by a Trust Officer, unless it is proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
|
|||
|
(3)
|
the
Trustee shall not be liable with respect to any action it takes or omits
to take in good faith in accordance with a direction received by it
pursuant to Section 7.5.
|
|||
|
(d)
|
No
provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of
its rights or powers unless the Trustee shall have received adequate
security or indemnity in its opinion against potential costs and
liabilities incurred by it relating thereto.
|
|||
|
(e)
|
Every
provision of this Indenture that in any way relates to the Trustee is
subject to subsections (a), (b), (c) and (d) of this
Section 8.2.
|
|||
|
(f)
|
The
Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
|
|||
|
8.3
|
Rights of
Trustee.
|
|||
|
(a)
|
Subject
to Section 8.1:
|
|||
|
(1)
|
The
Trustee may act and rely conclusively on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the
document.
|
|||
-89-
|
(2)
|
Before
the Trustee acts or refrains from acting, it may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to
Section 12.2(b). The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion.
|
|||
|
(3)
|
The
Trustee may act through its agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due
care.
|
|||
|
(4)
|
The
Trustee shall not be liable for any action it takes or omits to take in
good faith which it believes to be authorized or within its rights or
powers.
|
|||
|
(5)
|
The
Trustee may consult with counsel of its selection, and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection in respect of any such action taken, omitted
or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
|
|||
|
(6)
|
The
Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
provided funding and security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
|
|||
|
(7)
|
The
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.
|
|||
|
(8)
|
The
Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Trust Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a Default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Securities and this Indenture.
|
|||
|
(9)
|
The
rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be
indemnified,
|
-90-
|
are
extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, including, without limitation as Paying Agent,
Registrar and Conversion Agent, and to each agent, custodian and other
Person employed to act hereunder.
|
||||
|
8.4
|
Individual Rights of
Trustee.
|
|||
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights. However, the Trustee is subject to
Section 8.10.
|
8.5
|
Trustee's
Disclaimer.
|
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities. It shall not be accountable for the Company's use of the
proceeds from the Securities and it shall not be responsible for any statement
in the Securities other than its certificate of authentication.
|
8.6
|
Notice of Default or
Events of Default.
|
If
a Default or an Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder of a Security (and to
beneficial owners as required by applicable law) notice of all uncured Defaults
or Events of Default known to it within 90 days after it occurs or, if
later, within 15 days after it becomes known to the Trustee. However, the
Trustee may withhold the notice if and for so long as a committee of its Trust
Officers in good faith determines that withholding notice is in the interests of
Holders of Securities, except in the case of a Default or an Event of Default in
payment of the principal of, or premium, if any, or interest on any Security
when due or in the payment of any redemption or purchase obligation, or the
Company's failure to convert Securities when obligated to convert
them.
|
8.7
|
Compensation
and Indemnity.
|
||
|
(a)
|
The
Company shall pay to the Trustee from time to time such compensation (as
agreed to from time to time by the Company and the Trustee in writing) for
its services (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust). The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
may include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
|
||
|
(b)
|
The
Company shall indemnify the Trustee or any predecessor Trustee (which for
purposes of this Section 8.7 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), incurred by
it
|
||
-91-
|
in
connection with the acceptance or administration of its duties under this
Indenture or any action or failure to act as authorized or within the
discretion or rights or powers conferred upon the Trustee hereunder
including the reasonable costs and expenses of the Trustee and its counsel
in defending (including reasonable legal fees and expenses) itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it
may seek indemnity. The Company need not pay for any settlement effected
without its prior written consent, which shall not be unreasonably
withheld.
|
|||
|
(c)
|
The
Company need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by it resulting from its gross
negligence, willful misconduct or bad faith.
|
||
|
(d)
|
The
obligations of the Company under this Section 8.7 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
|
||
|
(e)
|
When
the Trustee incurs expenses or renders services after an Event of Default
specified in clause (7) of Section 7.1(a) occurs, the expenses
and the compensation for the services are intended to constitute expenses
of administration under any Bankruptcy Law. The provisions of this Section
shall survive the termination of this Indenture.
|
||
|
8.8
|
Replacement of
Trustee.
|
||
|
(a)
|
The
Trustee may resign by so notifying the Company. The Holders of a majority
in aggregate principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and the Company and may,
with the Company's written consent, appoint a successor Trustee. The
Company may remove the Trustee at any time, so long as no Default or Event
of Default has occurred and is continuing, and appoint a successor Trustee
in accordance with this Section 8.8.
|
||
|
(b)
|
If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The resignation or removal of a Trustee shall not be effective
until a successor Trustee shall have delivered the written acceptance of
its appointment as described below.
|
||
|
(c)
|
If
a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of 10% in principal amount of the Securities then
outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee at the expense of the
Company.
|
||
-92-
|
(d)
|
If
the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
|
||
|
(e)
|
A
successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Immediately after that and
following the payment of all outstanding fees and expenses owed to the
Trustee under this Indenture, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee and be released
from its obligations (exclusive of any liabilities that the retiring
Trustee may have incurred while acting as Trustee) hereunder, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
|
||
|
(f)
|
A
retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee after its succession.
|
||
|
(g)
|
Notwithstanding
replacement of the Trustee pursuant to this Section 8.8, the
Company's obligations under Section 8.7 shall continue for the
benefit of the retiring Trustee.
.
|
||
|
8.9
|
Successor Trustee by
Merger, Etc.
|
||
If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business (including the administration
of this Indenture) to, another corporation, the resulting, surviving or
transferee corporation, without any further act, shall be the successor Trustee;
provided such transferee corporation shall qualify and be eligible under
Section 8.10. Such successor Trustee shall promptly mail notice of its
succession to the Company and each Holder (and to beneficial owners as required
by applicable law).
|
8.10
|
Eligibility;
Disqualification.
|
||
|
(a)
|
For
so long as required by applicable Canadian law, there shall be a Trustee
under this Indenture. The Trustee shall at all times be a company
organized under the laws of Canada or any province thereof and authorized
under such laws to carry on trust business therein.
|
||
|
(b)
|
The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition.
|
||
|
(c)
|
If
at any time the Trustee shall cease to satisfy any requirements of this
Section 8.10, it shall resign immediately in the manner and with the
effect specified in this Article
VIII.
|
||
-93-
ARTICLE
IX
SATISFACTION
AND DISCHARGE OF INDENTURE
|
9.1
|
Satisfaction and
Discharge of Indenture.
|
|||
|
(a)
|
This
Indenture shall cease to be of further force and effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided
below), and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when either:
|
|||
|
(A)
|
all
Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9 and
(ii) Securities for whose payment has theretofore been deposited in
trust and thereafter repaid to the Company as provided in
Section 9.3) have been delivered to the Trustee for cancellation;
or
|
|||
|
(B)
|
all
such Securities not theretofore delivered to the Trustee for
cancellation,
|
|||
|
(i)
|
have
become due and payable,
|
|||
|
(ii)
|
will
become due and payable at the Final Maturity Date within one year,
or
|
|||
|
(iii)
|
are
to be called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of a Redemption Notice by the
Trustee in the name, and at the expense, of the Company;
|
|||
|
provided
in the case of clause (B), that
|
||||
|
(1)
|
the
Company has deposited with the Trustee or a Paying Agent (other than the
Company or any of its Affiliates) as trust funds in trust for the purpose
of and in an amount of money and/or Shares, if applicable, sufficient to
pay and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Final Maturity Date or Redemption Date,
as the case may be. In the event that the Company exercises its right to
redeem the Securities as provided in Article III, the Company shall have
the right to withdraw its funds and/or Shares, if applicable, previously
deposited with the Trustee or Paying Agent pursuant to the immediately
preceding sentence;
|
|||
-94-
|
(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 Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
relating to the satisfaction and discharge of this Indenture have been
complied with.
|
||
|
(b)
|
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the conversion privilege and the Conversion Rate
of the Securities pursuant to Article IV and, if money shall have been
deposited with the Trustee pursuant to clause (2) of
Section 9.1(a), the provisions of Sections 2.5, 2.6, 2.7, 2.8,
2.9, 2.14, 5.1 and 11.12, Article IV and this Article IX, shall survive
until the Securities have been paid in full. Provided that the indemnity
in Section 8.7 shall not be extinguished by the payment of the
Securities.
|
||
|
9.2
|
Application of Trust
Money.
|
||
|
(a)
|
Subject
to the provisions of Section 9.3, the Trustee or a Paying Agent shall
hold in trust, for the benefit of the Holders, all money and/or Shares, if
applicable, deposited with it pursuant to Section 9.1 and shall apply
the deposited money and/or Shares, if applicable, in accordance with this
Indenture and the Securities to the payment of the principal of and
interest on the Securities.
|
||
|
(b)
|
The
Trustee may retain any cash balance held in connection with this Indenture
and may, but need not, hold the same in its deposit department or the
deposit department of one of its Affiliates; but the Trustee and its
Affiliates shall not be liable to account for any profit to the Company or
any other person or entity other than at a rate, if any, established from
time to time by the Trustee or its Affiliates. For the purpose of this
Section 9.2(b), "Affiliate" means affiliated companies within the
meaning of the Canada
Business Corporations Act ("CBCA"); and includes
Canadian Imperial Bank of Commerce, CIBC Mellon Global Securities Services
Company and Mellon Bank, N.A. and each of their affiliates within the
meaning of the CBCA.
|
||
|
9.3
|
Repayment to
Company.
|
||
|
(a)
|
The
Trustee and each Paying Agent shall promptly pay to the Company upon
request any excess money and/or Shares, if applicable, deposited with them
pursuant to Section 9.1(a) held by them at any time.
|
||
|
(b)
|
The
Trustee and each Paying Agent shall, subject to applicable abandonment
property laws, remit to the Company upon request any money and/or Shares,
if applicable, held by them for the payment of principal or interest that
remains unclaimed for two years after a right
to
|
||
-95-
|
such
money and/or Shares, if applicable, have matured; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
remittance, may at the expense of the Company cause to be mailed to each
Holder entitled to such money and/or Shares, if applicable, notice that
such money and/or Shares, if applicable, remain unclaimed and that after a
date specified therein, which shall be at least 30 days from the date
of such mailing, any unclaimed balance of such money and/or Shares, if
applicable, then remaining will be remitted to the Company. After
remittance to the Company, Holders entitled to money and/or Shares, if
applicable, must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another
person.
|
|||
|
9.4
|
Reinstatement.
|
||
|
(a)
|
If
the Trustee or any Paying Agent is unable to apply any money and/or
Shares, if applicable, in accordance with Section 9.2 by reason of
any legal proceeding or 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
the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 9.1 until such time as the Trustee or
such Paying Agent is permitted to apply all such money and/or Shares, if
applicable, in accordance with Section 9.2; provided, however, that
if the Company has made any payment of the principal of or interest on any
Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to
receive any such payment from the money and/or Shares, if applicable, held
by the Trustee or such Paying Agent.
|
||
|
(b)
|
If
pursuant to the last sentence of Section 9.1(a)(1), the Company
withdraws its previously deposited funds and/or Shares, if applicable, as
a result of its exercise of its redemption right, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit has occurred pursuant to
Section 9.1.
|
||
ARTICLE
X
AMENDMENTS;
SUPPLEMENTS AND WAIVERS
|
10.1
|
Without Consent of
Holders.
|
|||
|
(a)
|
The
Company and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder of a Security for
the purpose of:
|
|||
|
(1)
|
evidencing
a successor to the Company and the assumption by that successor of the
Company's obligations under this Indenture and the
Securities;
|
|||
-96-
|
(2)
|
adding
to the Company's covenants for the benefit of the Holders or surrendering
any right or power conferred upon the Company;
|
|||
|
(3)
|
securing
the Company's obligations in respect of the Securities;
|
|||
|
(4)
|
adding
a guarantor of the Securities;
|
|||
|
(5)
|
evidencing
and providing for the acceptance of the appointment of a successor Trustee
in accordance with Article VIII;
|
|||
|
(6)
|
complying
with any requirements in order to effect or maintain the qualification of
this Indenture under Indenture Legislation;
|
|||
|
(7)
|
providing
for conversion rights of Holders if any reclassification, recapitalization
or other change of Shares or any consolidation, amalgamation, arrangement,
merger or sale, conveyance, transfer of lease of all or substantially all
of the Company's property and assets occurs or otherwise complying with
the provisions of this Indenture in the event of a merger, amalgamation,
consolidation or sale, conveyance, transfer or lease of assets (including
the provisions of Section 4.9 and Article VI);
|
|||
|
(8)
|
increasing
the Conversion Rate, provided that the increase will not adversely affect
the interests of Holders;
|
|||
|
(9)
|
curing
any ambiguity, omission, inconsistency or correcting or supplementing any
defective provision contained in this Indenture;
|
|||
|
(10)
|
modifying
the provisions of this Indenture in order to comply with the CTA;
or
|
|||
|
(11)
|
modifying
any other provisions of this Indenture in any manner that will not
adversely affect the interests of the Holders in any material
respect.
|
|||
|
(b)
|
The
Company may, without consent of any Holder of a Security or the Trustee,
amend this Indenture for the purpose of surrendering the Company's right
to issue Shares upon conversion, redemption, purchase or repayment at
maturity of the Securities.
|
|||
|
10.2
|
With Consent of
Holders.
|
|||
|
(a)
|
Subject
to Section 10.1, the Company and the Trustee may amend or supplement
this Indenture or the Securities with the written consent of the Holders
of at least a majority in aggregate principal amount of the Securities
then outstanding or by the adoption of a resolution at a meeting of
Holders by at least a majority in aggregate principal amount of the
Securities represented at the meeting. However, subject
to
|
|||
-97-
|
Section 10.3,
without the written consent of each Holder affected, an amendment,
supplement or waiver may not:
|
||||
|
(1)
|
alter
the manner of calculation or rate of accrual of interest on any Security
or change the time of payment of any installment of interest on, any
Security;
|
|||
|
(2)
|
make
any of the Securities payable in money or securities other than that
stated in the Securities;
|
|||
|
(3)
|
change
the stated maturity of any Security;
|
|||
|
(4)
|
reduce
the principal amount, Redemption Price, Put Right Purchase Price, or
Change of Control Repurchase Price (as applicable) with respect to any of
the Securities, the amount payable upon redemption or purchase pursuant to
Article III or the Make-Whole Premium, with respect to any
Security;
|
|||
|
(5)
|
make
any change that adversely affects the rights of a Holder to convert any of
the Securities in any material respect;
|
|||
|
(6)
|
make
any change that adversely affects the rights of Holders to require the
Company to purchase Securities at the option of Holders in any material
respect;
|
|||
|
(7)
|
impair
the right to institute suit for the enforcement of any payment on or with
respect to any Security or with respect to the conversion of any Security;
or
|
|||
|
(8)
|
change
the provisions in this Indenture that relate to modifying or amending this
Indenture.
|
|||
|
(b)
|
Without
limiting the provisions of Section 10.2(a) hereof, the Holders of a
majority in principal amount of the Securities then outstanding may, on
behalf of all the Holders of all Securities, (i) waive compliance by
the Company with the restrictive provisions of this Indenture, and
(ii) waive any past Default or Event of Default under this Indenture
and its consequences, except an uncured failure to pay when due the
principal amount, accrued and unpaid interest, Redemption Price, Put Right
Purchase Price or Change of Control Repurchase Price, if any and as
applicable, or a default in the obligations to deliver Shares with respect
to any Security, or in respect of any provision which under this Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected.
|
|||
|
(c)
|
Notwithstanding
anything to the contrary contained in this Section 10.2, this
Indenture may not be amended or supplemented in respect of any event
described in Section 10.2(a) in a manner which adversely affects
the
|
|||
-98-
|
rights
of Holders without the prior written consent of the TSX or such other
exchange on which the Securities are then listed.
|
|||
|
(d)
|
After
an amendment, supplement or waiver under this Section 10.2 becomes
effective, the Company shall promptly mail to the Holders affected thereby
a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
|
||
|
10.3
|
Revocation and Effect
of Consents.
|
||
|
(a)
|
Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to its Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.
|
||
|
(b)
|
After
an amendment, supplement or waiver becomes effective, it shall bind every
Holder of a Security, unless it makes a change described in any of
clauses (1) through (8) of Section 10.2(a). In the case of an
amendment, supplement, or waiver that makes a change described in any of
clauses (1) through (8) of Section 10.2(a), the amendment,
supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's
Security.
|
||
|
10.4
|
Notation on or
Exchange of Securities.
|
||
If
an amendment, supplement or waiver changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
|
10.5
|
Trustee to Sign
Amendments, Etc.
|
The
Trustee shall sign any amendment or supplemental indenture authorized pursuant
to this Article X if the amendment or supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, in its sole discretion, but need not sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee shall be
entitled to receive and, subject to Section 8.1, shall be fully protected
in relying upon, an Opinion of Counsel stating that such amendment or
supplemental
-99-
indenture
is authorized or permitted by this Indenture. The Company may not sign an
amendment or supplement indenture until the Board of Directors approves
it.
|
10.6
|
Effect of Supplemental
Indentures.
|
Upon
the execution of any supplemental indenture under this Article X, 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.
ARTICLE
XI
MEETINGS
OF HOLDERS
|
11.1
|
Right to Convene
Meetings.
|
The
Trustee may at any time and from time to time convene a meeting of the Holders,
and the Trustee shall convene a meeting of the Holders upon receipt of a request
of the Company or a written request signed by the Holders of not less than 25%
of the principal amount on the Securities then outstanding and upon being funded
and indemnified to its reasonable satisfaction by the Company or by the Holders
signing such request against the costs which may be incurred in connection with
the calling and holding of such meeting. If the Trustee fails within
30 days after receipt of any such request and such indemnity to give notice
convening a meeting, the Company or such Holders, as the case may be, may
convene such meeting. Every such meeting shall be held in Montreal, Québec, or
at such other place as may be approved or determined by the Trustee, the Company
or the Holders as convened in accordance with this Section 11.1.
|
11.2
|
Notices of
Meetings.
|
Notice
of a meeting of Holders shall be given to the Holders in the manner specified in
Section 12.1 at least 25 days prior to the date of the
meeting, and a copy of any notice sent by mail to Holders shall be sent by mail
to the Trustee (unless the meeting has been called by it) and to the Company
(unless the meeting has been called by it). A notice of a meeting of Holders
shall state the time and place at which the meeting is to be held and shall
state briefly the general nature of the business to be transacted thereat, and
it shall not be necessary for any such notice to set out the terms of any
resolution to be proposed or any of the provisions of this Article
XI.
|
11.3
|
Chairman.
|
The
Holders present in person or represented by proxy shall choose an individual
present to be the chairman of the meeting who need not be a Holder.
|
11.4
|
Quorum.
|
The
quorum for a meeting of Holders shall be Holders present in person or
represented by proxy and owning or representing at least 25% of the aggregate
principal amount of the Securities then outstanding. If a quorum is not present
within 30 minutes from the time fixed
-100-
for
the holding of a meeting, the meeting, if convened by the Holders, shall be
dissolved, but in any other case the meeting shall be adjourned to the same day
in the next week (unless such day is not a Business Day, in which case it shall
be adjourned to the next following Business Day thereafter) at the same time and
place, and no notice shall be required to be given in respect of such adjourned
meeting. At the adjourned meeting, the Holders present in person or represented
by proxy shall constitute a quorum and may transact the business for which the
meeting was originally convened notwithstanding that they may not represent at
least 25% of the aggregate principal amount of the Securities then
outstanding.
|
11.5
|
Power to
Adjourn.
|
The
chairman of a meeting at which a quorum of Holders is present may, with the
consent of the Holders of a majority of the aggregate principal amount of the
Securities present or represented thereat, adjourn such meeting, and no notice
of such adjournment need be given except such notice, if any, as the meeting may
prescribe.
|
11.6
|
Show of
Hands.
|
Except
as otherwise provided in this Indenture, every resolution submitted to a meeting
shall be decided by a majority of the votes cast on a show of hands, and unless
a poll is duly demanded as herein provided, a declaration by the chairman that a
resolution has been carried or carried unanimously or by a particular majority
or lost or not carried by a particular majority shall be conclusive evidence of
the fact. The chairman of any meeting shall be entitled, both on a show of hands
and on a poll, to vote in respect of the Securities, if any, held by
him.
|
11.7
|
Poll.
|
On
any resolution submitted to a meeting in respect of which the chairman of the
meeting or one or more Holders or proxyholders for Holders holding at least
$10,000 principal amount of Securities after a vote by show of hands, demands a
poll, a poll shall be taken in such manner and either at once or after an
adjournment as the chairman of the meeting shall direct.
|
11.8
|
Voting.
|
On
a show of hands, every Person who is present and entitled to vote, whether as a
Holder or as proxyholder for one or more Holders or both, shall have one vote.
On a poll, each Holder present in person or represented by a proxy duly
appointed by an instrument in writing shall be entitled to one vote in respect
of each $1,000 principal amount of Securities held by such Holder on the record
date fixed for the meeting. A proxyholder need not be a Holder. In the case of
joint Holders of a Security, any one of them present in person or represented by
proxy at the meeting may vote in the absence of the other or others, but if
more than one of them are present in person or represented by proxy,
they shall vote together in respect of the Securities of which they are joint
Holders.
In
the case of a Global Note, the Depository may appoint or cause to be appointed a
Person or Persons as proxies and shall designate the number of votes entitled to
each such Person, and each such Person shall be entitled to be present at any
meeting of Holders and shall
-101-
be
the Persons entitled to vote at such meeting in accordance with the number of
votes set out in the Depository's designation.
|
11.9
|
Company and Trustee
May Be Represented.
|
The
Company and the Trustee, by their respective officers, directors and employees,
and the legal advisers of the Company and the Trustee may attend any meeting of
the Holders, but shall have no voting rights.
|
11.10
|
Minutes.
|
Minutes
of all resolutions and proceedings at every meeting of Holders shall be made and
duly entered in books to be from time to time provided for that purpose by the
Trustee at the expense of the Company, and any such minutes, if signed by the
chairman of the meeting at which such resolutions were passed or proceedings
had, or by the chairman of the next succeeding meeting of the Holders, shall be
prima facie evidence of
the matters therein stated and, unless the contrary is proved, every such
meeting, in respect of the proceedings of which minutes shall have been made,
shall be deemed to have been duly held and convened, and all resolutions passed
thereat or proceedings had shall be deemed to have been duly passed and
had.
|
11.11
|
Binding Effect of
Resolutions.
|
Every
resolution passed in accordance with the provisions of this Article XI at a
meeting of Holders shall be binding upon all the Holders, whether present at or
absent from such meeting, and each and every Holder and the Trustee (subject to
the provisions for its remuneration, indemnification and protection herein
contained) shall be bound to give effect accordingly to every such
resolution.
|
11.12
|
Record Date for Vote
or Consent of Holders of Securities.
|
The
Company (or, in the event deposits have been made pursuant to Section 9.1,
the Trustee) may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall not be more than
30 days prior to the date of the commencement of solicitation of such
action. Notwithstanding the provisions of Section 10.3, if a record date is
fixed, those persons who were Holders of Securities at the close of business on
such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
|
11.13
|
Rules by Trustee,
Paying Agent, Registrar and Conversion Agent.
|
The
Trustee, or the Company with the approval of the Trustee, may from time to time
make such other reasonable rules (not inconsistent with the terms of this
Indenture) for action by or at a meeting of Holders. Any Registrar, Paying Agent
or Conversion Agent may make reasonable rules for its functions.
-102-
ARTICLE
XII
MISCELLANEOUS
|
12.1
|
Notices.
|
Any
demand, authorization notice, request, consent or communication shall be given
in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by delivery in person or mail by first-class mail, postage prepaid,
or by guaranteed overnight courier) to the following facsimile
numbers:
If
to the Company, to:
▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇
▇▇▇
Attention:
Chief Legal Officer
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
Stikeman
Elliott LLP
▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇
▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile
No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone
No: (▇▇▇) ▇▇▇-▇▇▇▇
if
to the Trustee, to:
CIBC
Mellon Trust Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention:
Manager, Fiduciary Services
Facsimile
No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone
No: (▇▇▇) ▇▇▇-▇▇▇▇
and
any such notice or communication delivered in accordance with the foregoing
shall be deemed to have been received on the date of delivery or, if transmitted
by facsimile transmission the day of transmission or, if such day is not a
Business Day, on the first Business Day following the day of transmission;
provided that if such notice or communication is
-103-
delivered
or transmitted by facsimile transmission after 4 p.m. (Toronto time), such
notice will be deemed to be received on the next Business Day.
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication mailed to a Holder of a Security (and to beneficial
owners as required by applicable law) shall be mailed by first-class mail or
delivered by an overnight delivery service to it at its address shown on the
register kept by the Primary Registrar.
Failure
to mail a notice or communication to a Holder of a Security or any defect in it
shall not affect its sufficiency with respect to other Holders of Securities. If
a notice or communication to a Holder of a Security is mailed in the manner
provided above, it is duly given, whether or not the addressee receives
it.
If
the Company mails any notice to a Holder of a Security, it shall mail a copy to
the Trustee and each Registrar, Paying Agent and Conversion Agent.
|
12.2
|
Mail Service
Interruption.
|
If
by reason of any interruption of mail service, actual or threatened, any notice
or communication to be given to the Trustee would reasonably be unlikely to
reach its destination by the time notice or communication by mail is deemed to
have been given pursuant to Section 12.1, such notice or communication
shall be valid and effective only if delivered at the appropriate address in
accordance with Section 12.1.
|
12.3
|
Certificate and
Opinion as to Conditions Precedent.
|
|||
|
(a)
|
Upon
any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee at
the request of the Trustee:
|
|||
|
(1)
|
an
Officers' Certificate stating that, in the opinion of the signers, all
conditions precedent (including any covenants, compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with; and
|
|||
|
(2)
|
an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent (including any covenants, compliance with which
constitutes a condition precedent) have been complied with.
|
|||
|
(b)
|
Each
Officers' Certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
|
|||
-104-
|
(1)
|
a
statement that the person making such certificate or opinion has read such
covenant or condition;
|
|
(2)
|
a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
|
|
(3)
|
a
statement that, in the opinion of such person, he or she has made such
examination or investigation as is necessary to enable him or her 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 or not, in the opinion of such person, such
condition or covenant has been complied
with;
|
provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
|
12.4
|
Day not a Business
Day.
|
In
the event that any day on or before which any action required to be taken
hereunder is not a Business Day, then such action shall be required to be taken
on or before the requisite time on the next succeeding day that is a Business
Day.
|
12.5
|
Governing
Law.
|
This
Indenture and the Securities shall be governed by, and construed in accordance
with, the laws of the Province of Ontario. The Company has submitted to the
non-exclusive jurisdiction of any court of the Province of Ontario for purposes
of all legal actions and proceedings instituted in connection with the Indenture
and the Securities.
|
12.6
|
No Adverse
Interpretation of Other
Agreements.
|
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
|
12.7
|
No Recourse Against
Others.
|
All
liability described in paragraph 21 of the Securities of any director, officer,
employee or shareholder, as such, of the Company hereby is waived and released
by each of the Holders.
|
12.8
|
No Security Interest
Created.
|
Nothing
in this Indenture or in the Securities, express or implied, shall be construed
to constitute a security interest under personal property security legislation
in Canada (including the Civil Code), the Uniform Commercial Code in the United
States or similar legislation, now in effect or hereafter enacted and made
effective, in any jurisdiction.
-105-
|
12.9
|
Benefits of
Indenture.
|
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, any paying
agent, the Holders of Securities (and each such person who becomes a Holder of
Securities), the Trustee and to the extent provided in Section 7.5, the
holders of Shares, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
|
12.10
|
Successors.
|
All
agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
|
12.11
|
Table of Contents,
Headings, Etc.
|
The
table of contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
|
12.12
|
Choice of
Language.
|
The
parties hereby acknowledge that they have expressly required this Indenture and
all notices, statements of account and other documents required or permitted to
be given or entered into pursuant hereto to be drawn up in the English language
only. In the event of any contradiction, discrepancy or difference between the
English language version and the French language version of the texts of the
forms of Securities, the English language version shall govern. Les parties reconnaissent avoir
expressément demandé que la présente Convention ainsi que tout avis, tout état
de compte et tout autre document à être ou pouvant être donnés ou conclus en
vertu des dispositions des présentes, soit rédigés en anglais
seulement.
|
12.13
|
Other
Currencies.
|
For
the purpose of making any computation under this Indenture, any currency other
than Canadian dollars shall be converted into Canadian dollars at the applicable
Bank of Canada noon rate of exchange for purchases or sales of Canadian dollars
as applicable in the circumstances on the date on which such computation is to
be made.
|
12.14
|
Severability.
|
If,
in any jurisdiction, any provision of this Indenture or its application to any
party or circumstance is restricted, prohibited or unenforceable, such provision
shall, as to such jurisdiction, be ineffective only to the extent of such
restriction, prohibition or unenforceability without invalidating the remaining
provisions of this Indenture and without affecting the validity or
enforceability of such provision in any other jurisdiction or without affecting
its application to other party or circumstances.
-106-
|
12.15
|
No Conflict of
Interest.
|
The
Trustee represents to the Company that at the date of the execution and delivery
of this Indenture there exists no material conflict of interest in the Trustee's
role as a fiduciary hereunder. If at any time a material conflict of interest
exists in respect of the Trustee's role as a fiduciary under this Indenture that
is not eliminated within 90 days after the Trustee becomes aware that such
a material conflict of interest exists, the Trustee shall resign from the trusts
under this Indenture by giving notice in writing of such resignation and the
nature of such conflict to the Company at least 21 days prior to the date
upon which such resignation is to take effect, and shall on such date be
discharged from all further duties and liabilities hereunder. The validity and
enforceability of this Indenture and any Securities shall not be affected in any
manner whatsoever by reason only of the existence of a material conflict of
interest of the Trustee.
|
12.16
|
Assignment and
Enurement.
|
The
parties hereto acknowledge and agree, and any beneficiaries hereunder are hereby
deemed to have acknowledged and agreed that the Trustee may, without the consent
of any other party, assign all of its rights and duties under this Indenture,
and under any ancillary agreements executed in connection herewith, to such
federal trust company as may result from CIBC Mellon Trust Company being
continued as a trust company pursuant to the terms of the Trust and Loan Companies Act
(Canada). Any such assignment shall be effective without the need for any
further notice or advice to, or approval of, the parties hereto and without any
further act or formality whatsoever.
|
12.17
|
Acceptance of
Trusts.
|
The
Trustee hereby accepts the trusts in this Indenture declared and provided for
and agrees to perform the same upon the terms and conditions set forth in this
Indenture and in trust for the Holders from time to time, subject to the terms
and conditions of this Indenture.
|
12.18
|
Counterparts and
Formal Date.
|
This
Indenture may be executed in several counterparts, each of which, when so
executed shall be deemed to be an original, and such counterparts together shall
constitute one and the same instrument and notwithstanding their date of
execution shall be deemed to bear date as of April 6, 2005.
[SIGNATURE
PAGE FOLLOWS]
-107-
IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the date and year first above
written.
|
By:
|
||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
Chairman,
President and Chief Executive Officer
|
|
|
CIBC
MELLON TRUST COMPANY
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
-1-
EXHIBIT
A
FORM
OF SECURITY
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE CANADIAN
DEPOSITORY FOR SECURITIES LIMITED ("CDS") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS&CO., OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE
TO CDS&CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CDS&CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.1
THIS
SECURITY AND THE SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "U.S.
SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIROR
|
|
(1)
|
REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A "QUALIFIED
INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE U.S.
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH
RESPECT TO EACH SUCH ACCOUNT;
|
|
|
(2)
|
AGREES
FOR THE BENEFIT OF THE CORPORATION THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, PRIOR
TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE LAST
ORIGINAL ISSUE DATE HEREOF (WHICH WOULD INCLUDE THE EXERCISE OF THE
OVERALLOTMENT OPTION) AND THE LAST DATE ON WHICH THE CORPORATION OR ANY
AFFILIATE OF THE CORPORATION WAS
THE
|
1 This
paragraph should be included only if the Security is a Global
Security.
-2-
OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(K) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW, EXCEPT ONLY:
| (A) | TO THE CORPORATION OR ANY SUBSIDIARY THEREOF; | |
|
|
(B)
|
PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE U.S.
SECURITIES ACT;
|
|
|
(C)
|
TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
U.S. SECURITIES ACT;
|
|
|
(D)
|
IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE U.S. SECURITIES ACT; OR
|
|
|
(E)
|
PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE U.S.
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES
ACT.
|
FOR ANY
TRANSFER IN ACCORDANCE WITH 2(D) ABOVE, THE LEGEND MAY BE REMOVED BY PROVIDING A
DULY COMPLETED AND SIGNED CERTIFICATE, THE FORM OF WHICH MAY BE OBTAINED FROM
CIBC MELLON TRUST COMPANY (THE "TRUSTEE"), TO THE TRUSTEE. FOR ANY TRANSFER IN
ACCORDANCE WITH (2)(E) ABOVE, THE LEGEND MAY BE REMOVED BY DELIVERY TO THE
TRUSTEE OF AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY
TO THE CORPORATION, TO THE EFFECT THAT SUCH LEGEND IS NO LONGER REQUIRED UNDER
APPLICABLE REQUIREMENTS OF THE U.S. SECURITIES ACT OR STATE SECURITIES
LAWS.2
2 These paragraphs to be
included only if the Security is a Restricted Security.
-3-
4.25%
Convertible Senior Notes due 2035
|
No.
|
CUSIP/ISIN:
|
[
|
/
|
]
|
||||
ACE
Aviation Holdings Inc., a Canadian corporation, promises to pay to CDS&Co.
or registered assigns the principal amount set forth in the attached Schedule 1
on June 1, 2035.
This
Security shall bear interest as specified in this Security.
This
Security is convertible as specified in this Security.
Additional
provisions of this Security are set forth in this Security.
Dated:
l,
2005
[SIGNATURE
PAGE FOLLOWS]
-4-
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
|
By:
|
|||||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
||||
|
Title:
|
Chairman,
President and Chief Executive Officer
|
||||
|
Dated:
___________________________, 2005
|
|||||
| Trustee's Certificate of Authentication: This is one of the Securities referred to in the within-mentioned Indenture. |
|
||||
|
CIBC MELLON TRUST COMPANY,
as Trustee
|
|||||
|
By:
|
|||||
|
Authorized
Signatory
|
|||||
|
By:
|
|||||
|
Authorized
Signatory
|
|||||
-5-
CONVERTIBLE
SENIOR NOTES DUE 2035
1. INTEREST
ACE
Aviation Holdings Inc., a Canadian corporation (the "Company", which term shall
include any successor corporation under the Indenture hereinafter referred to),
promises to pay interest on the principal amount of this Security at the rate of
4.25% per annum. The Company shall pay interest semi-annually on June 1 and
December 1 of each year (each an "Interest Payment Date"),
commencing December 1, 2005. Each payment of interest will include interest
accrued through the day before the relevant Interest Payment Date (or purchase
or redemption date, as the case may be). Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
No
sinking fund is provided for the Securities.
2. MATURITY
The
Securities will mature on June 1, 2035.
3. METHOD
OF PAYMENT
The
Company shall pay interest on this Security (except defaulted interest) to the
person who is the Holder of this Security at the close of business on
May 15 or November 15 (or on the next Business Day, if such date is
not a Business Day), as the case may be, (each, a "Regular Record Date") next
preceding the related Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in the lawful currency of Canada. The Company may pay
principal and interest in respect of any Certificated Security by cheque or wire
payable in such money; provided, however, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Trustee at least 10 Business Days
prior to the Payment Date. The Company may mail an interest cheque to the
Holder's registered address. Notwithstanding the foregoing, so long as this
Security is registered in the name of a Depositary or its nominee, all payments
hereon shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
Any wire
transfer instructions received by the Trustee will remain in effect until
revoked by the Holder.
In
respect of the payment of principal, together with accrued and unpaid interest
thereon, the Company may, in certain circumstances, elect to satisfy its
obligation to pay such principal and interest, in whole or in part, by
delivering Shares, as provided for, and subject to the conditions, in the
Indenture.
-6-
4. PAYING
AGENT, REGISTRAR AND CONVERSION AGENT
Initially,
CIBC Mellon Trust Company (the "Trustee", which term shall
include any successor trustee under the Indenture hereinafter referred to) will
act as Paying Agent, Registrar and Conversion Agent. The Company may change any
Paying Agent, Registrar or Conversion Agent without notice to the Holder. The
Company or any of its Subsidiaries may, subject to certain limitations set forth
in the Indenture, act as Paying Agent or Registrar.
5. INDENTURE,
LIMITATIONS
This
Security is one of a duly authorized issue of Securities of the Company
designated as its 4.25% Convertible Senior Notes Due 2035 (the "Securities"), issued under an
Indenture dated as of April 6, 2005 (together with any supplemental
indentures thereto, the "Indenture"), between the
Company and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to
indenture legislation. This Security is subject to all such terms, and the
Holder of this Security is referred to the Indenture and said legislation for a
statement of them. In the event of any contradiction or inconsistency between
the provisions of the Indenture and this Security, the provisions of the
Indenture shall prevail.
The
Securities are senior unsecured obligations of the Company limited to
$330,000,000 aggregate
principal amount. The Indenture does not limit other debt of the Company,
secured or unsecured.
6. ADDITIONAL
AMOUNTS.
The
Company will pay to the Holders such Additional Amounts as may become payable
under Section 5.8 of the Indenture.
7. REDEMPTION
AT THE OPTION OF THE COMPANY
Subject
to Section 3.8 of the Indenture, prior to June 6, 2008, the Securities
shall not be redeemable. On or after June 6, 2008, the Company may, at its
option, redeem the Securities for cash, as a whole at any time or from time to
time in part at a redemption price of 100% of the principal amount of the
Securities plus accrued and unpaid interest, if any, up to but not including the
applicable Redemption Date (the "Redemption Price"); provided
that if the Redemption Date falls after a Regular Record Date and on or before
the related Interest Payment Date, then interest on the Securities payable on
such Interest Payment Date will instead be payable on such Interest Payment Date
to the Holders in whose names the Securities are registered at the close of
business on such Regular Record Date. Securities or portions of Securities
called for redemption shall be convertible by the Holder until the close of
business on the Business Day prior to the relevant Redemption Date. The Company
may elect to satisfy its obligation to pay the Redemption Price, in whole or in
part, by delivering Shares, as provided for, and subject to the conditions,
under Section 3.6 of the Indenture.
-7-
8. REDEMPTION
NOTICE
Subject
to Section 3.8 of the Indenture, a redemption notice, as set forth in
Section 3.3 of the Indenture, (the "Redemption Notice") will be
mailed by first-class mail at least 30 days but not more than 60 days
before a Redemption Date to each Holder of Securities (and to beneficial owners
as required by applicable law) to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part, but only
in whole multiples of $1,000. On and after the Redemption Date, subject to the
deposit with the Paying Agent of funds and/or Shares, if applicable, sufficient
to pay the Redemption Price, such Securities or portions of them called for
redemption will cease to be outstanding, whether or not the Security is
delivered to the Paying Agent, and the rights of the Holder in respect thereof
shall cease (other than the right to receive the Redemption Price).
9. REDEMPTION
FOR TAX REASONS.
The
Company may at any time, at its option, redeem the Securities, in whole but not
in part, at the Redemption Price, if the Company has become or would become
obligated to pay to the Holders Additional Amounts (which are more than a de minimus amount, as
determined by the Company, acting reasonably) as a result of any amendment or
change occurring after March 30, 2005 in the laws or any regulations of
Canada or any Canadian political subdivision or taxing authority, or any change
occurring after March 30, 2005 in the interpretation or application of any
such laws or regulations by any legislative body, court, governmental agency,
taxing authority or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory or
administrative determination); provided the Company cannot avoid these
obligations by taking reasonable measures available to it and that it delivers
to the Trustee an opinion of Canadian legal counsel specializing in taxation and
an Officers' Certificate attesting to such change and obligation to pay
Additional Amounts. The Company will not and will not cause any Paying Agent or
the Trustee to deduct from such Redemption Price any amounts on account of, or
in respect of, any Canadian Taxes other than Excluded Taxes (except in respect
of certain Excluded Holders). In such event, the Company will give the Trustee
and the Holders of the Securities notice of this redemption in accordance with
the notice requirements of Section 3.3 of the Indenture, except that (i) the
Company will not give Redemption Notice earlier than 60 days prior to the
earliest date on or from which it would be obligated to pay any such Additional
Amounts, and (ii) at the time the Company gives the notice, the circumstances
creating its obligation to pay such Additional Amounts remain in effect. For
greater certainty, the Company may elect to satisfy its obligation to pay the
Redemption Price pursuant to this Section, in whole or in part, by delivering
Shares, as provided for, and subject to the conditions, under Section 3.6
of the Indenture.
Upon
receiving such Redemption Notice, each Holder who does not wish to have the
Company redeem its Securities pursuant to Section 3.8 of the Indenture can
elect to (i) convert its Securities pursuant to Article IV of the Indenture or
(ii) not have its Securities redeemed, provided that no Additional Amounts will
be payable by the Company on any payment of interest or principal with respect
to the Securities after such Redemption Date. All future payments will be
subject to the deduction or withholding of any Canadian Taxes required to be
deducted or withheld.
-8-
Where no
such election is made, the Holder will have its Securities redeemed without any
further action. If a Holder does not elect to convert its Securities pursuant to
Article IV of the Indenture but wishes to elect to not have its Securities
redeemed, such Holder must deliver to the Company (if the Company is acting as
its own Paying Agent), or to a Paying Agent designated by the Company for such
purpose in the notice of redemption, a written notice of election (the "Notice of Election") on the
back of this Security, or any other form of written notice substantially similar
to the Notice of Election, in each case, duly completed and signed, so as to be
received by the Paying Agent no later than the close of business on a Business
Day at least five Business Days prior to the Redemption Date.
A Holder
may withdraw any Notice of Election by delivering to the Company (if the Company
is acting as its own Paying Agent), or to a Paying Agent designated by the
Company in the notice of redemption, a written notice of withdrawal prior to the
close of business on the Business Day prior to the Redemption Date.
10. CHANGE
OF CONTROL
Subject
to the terms and conditions of the Indenture, the Company shall become obligated
to offer to purchase all of the outstanding Securities for cash, subject to
certain exceptions described in the Indenture. The Company may elect to satisfy
its obligation to pay the Change of Control Repurchase Price, in whole or in
part, by delivering Shares, as provided for, and subject to the conditions,
under Section 3.13 of the Indenture. The Company shall become obligated to
purchase all or any part specified by the Holder (so long as the principal
amount of such part is $1,000 or an integral multiple of $1,000) of the
Securities held by such Holder on a date specified by the Company that is 30
Business Days after the date that a Change of Control Company Notice is
delivered, at a purchase price equal to 100% of the principal amount thereof
together with accrued and unpaid interest, if any, to, but excluding, the Change
of Control Repurchase Date. The Holder shall have the right to withdraw any
Change of Control Repurchase Notice (in whole or in a portion thereof that is
$1,000 or an integral multiple of $1,000) at any time prior to the close of
business on the Business Day next preceding the Change of Control Repurchase
Date by delivering a written notice of withdrawal to the Paying Agent in
accordance with the terms of the Indenture.
11. PURCHASE
OF SECURITIES AT OPTION OF HOLDER ON SPECIFIED DATES
At the
option of the Holder and subject to the terms and conditions of the Indenture,
the Company shall become obligated to purchase for cash all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000) of the Securities held by such Holder on the
applicable Put Right Purchase Date at the applicable Put Right Purchase Price.
The Company may elect to satisfy its obligation to pay the Put Right Purchase
Price, in whole or in part, by delivering Shares, as provided for, and subject
to the conditions, under Section 3.15 of the Indenture. The Holder shall
have the right to withdraw any Put Right Purchase Notice (in whole or in a
portion thereof that is $1,000 or an integral multiple of $1,000) at any time
prior to the close of business on the Business Day next preceding the Put Right
Purchase Date by delivering a written notice of withdrawal to the Paying Agent
in accordance with the terms of the Indenture.
-9-
12. CONVERSION
Subject
to and upon compliance with the provisions of the Indenture, a Holder may
surrender for conversion any Security that is $1,000 principal amount or
integral multiples thereof. At the sole option of the Company, in lieu of
receiving Shares, a Holder will receive an amount of cash to be delivered per
Security equal to (i) the number of Shares in respect of which the cash payment
is being made, multiplied by (ii) the average of the Closing Price of the Shares
for each of the ten consecutive Trading Days of the Conversion Reference Period,
provided that after the consummation of a Change of Control in which the
consideration is comprised entirely of cash, the amount used in this clause (ii)
will be the cash price per Share received by holders of Shares in such Change of
Control.
13. DENOMINATIONS,
TRANSFER, EXCHANGE
The
Securities are in registered form, without coupons, in denominations of $1,000
principal amount and integral multiples of $1,000 principal amount. A Holder may
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes or other
governmental charges that may be imposed in relation thereto by law or permitted
by the Indenture.
14. PERSONS
DEEMED OWNERS
The
Holder of a Security may be treated as the owner of it for all
purposes.
15. MERGER
OR CONSOLIDATION
The
Company may not, without the consent of the Holders, consolidate with or
amalgamate or merge with or into any Person or sell, convey, transfer or lease
all or substantially all of the properties and assets of the Company to another
Person unless: (1) the Person formed by such consolidation or into which
the Company is amalgamated or merged, or the Person which acquires by sale,
conveyance, transfer or lease all or substantially all of the properties and
assets of the Company is a corporation incorporated and existing under the laws
of Canada or any province or territory thereof or the laws of the United States
and such corporation (if other than the Company) expressly assumes, by an
indenture supplemental to the Indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the obligations of the Company under the
Securities and the Indenture and the performance or observance of every covenant
and provision of the Indenture and the Securities required on the part of the
Company to be performed or observed and the conversion rights shall be provided
for in accordance with Article IV of the Indenture, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the Person which shall have
acquired the Company's assets; (2) after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(3) if the Company will not be the resulting or surviving corporation, the
Company shall have, at or prior to the effective date of such consolidation,
amalgamation, merger or sale, conveyance, transfer or lease, delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating
-10-
that such
consolidation, merger or transfer complies with Article VI of the Indenture and,
if a supplemental indenture to the Indenture is required in connection with such
transaction, such supplemental indenture complies with Article VI of the
Indenture, and that all conditions precedent herein provided for relating to
such transaction have been complied with; provided however, for purposes of the
foregoing, the sale, conveyance, transfer or lease (in a single transaction or a
series of related transactions) of the properties and assets of one or more
Subsidiaries of the Company (other than to the Company or another wholly-owned
Subsidiary of the Company), which, if such properties or assets were directly
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company and its Subsidiaries, taken as a whole,
shall be deemed to be the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company.
16. UNCLAIMED
MONEY AND/OR SHARES
If money
and/or Shares, if applicable, for the payment of principal or interest remains
unclaimed for two years, the Trustee and any Paying Agent will remit the money
back to the Company at its written request, subject to applicable unclaimed
property law and the provisions of the Indenture. After that, Holders entitled
to money and/or Shares, if applicable, must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person.
17. AMENDMENT,
SUPPLEMENT AND WAIVER
Subject
to certain exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding, and an existing Default or
Event of Default and its consequence or compliance with any provision of the
Indenture or the Securities may be waived in a particular instance with the
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without the consent of or notice to any Holder, the
Company and the Trustee may amend or supplement the Indenture or the Securities
to, among other things, cure any ambiguity, defect or inconsistency or make any
other change that does not adversely affect the rights of the Holders in any
material respect. The Company may also amend the Indenture, without consent of
the Holders or the Trustee, for the purpose of surrendering the Company's right
to issue Shares upon conversion of the Securities.
18. SUCCESSOR
ENTITY
When a
successor corporation assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor corporation (except in certain circumstances
specified in the Indenture) shall be released from those
obligations.
19. DEFAULTS
AND REMEDIES
Under the
Indenture, an Event of Default shall occur if:
|
|
(1)
|
the
Company shall fail to pay when due the principal amount or any Redemption
Price, Put Right Purchase Price or Change of
Control
|
-11-
Repurchase
Price of any Security, when the same becomes due and payable whether at the
Final Maturity Date, upon redemption, repurchase, acceleration or otherwise;
or
|
|
(2)
|
the
Company shall fail to pay an installment of cash interest on any of the
Securities, which failure continues for 30 days after the date when
due; or
|
|
|
(3)
|
the
Company shall fail to deliver when due all cash and Shares or other
consideration, including a Make-Whole Premium, deliverable upon conversion
of the Securities, which failure continues for 15 days;
or
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|
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(4)
|
the
Company shall fail to perform or observe any other term, covenant or
agreement contained in the Securities or the Indenture, including, without
limitation, the requirement to make a Change of Control Purchase Offer for
a period of 30 days after receipt by the Company of a Notice of
Default specifying such failure; or
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|
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(5)
|
the
Company defaults in the payment of principal when due or resulting in
acceleration of other Indebtedness of the Company for borrowed money where
the aggregate principal amount with respect to which the default or
acceleration has occurred exceeds $50 million and such acceleration
has not been rescinded or annulled or such Indebtedness repaid within a
period of 30 days after receipt of a Notice of Default, provided that
if any such default is cured, waived, rescinded or annulled, then the
Event of Default by reason thereof would be deemed not to have occurred;
or
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(6)
|
the
Company pursuant to or within the meaning of any Bankruptcy
Law:
|
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(A)
|
commences
as a debtor a voluntary case or proceeding;
or
|
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(B)
|
consents
to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case against it;
or
|
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(C)
|
consents
to the appointment of a Receiver of it or for all or substantially all of
its property; or
|
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(D)
|
makes
a general assignment for the benefit of its creditors;
or
|
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(E)
|
files
a petition in bankruptcy or answer or consent seeking reorganization or
relief; or
|
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(F)
|
consents
to the filing of such a petition or the appointment of or taking
possession by a Receiver; or
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-12-
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(7)
|
a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
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(A)
|
grants
relief against the Company in an involuntary case or proceeding or
adjudicates the Company insolvent or bankrupt;
or
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(B)
|
appoints
a Receiver of the Company or for all or substantially all of the property
of the Company; or
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(C)
|
orders
the winding up or liquidation of the
Company;
|
and in
each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term
"Bankruptcy Law" means
the Bankruptcy and Insolvency Act (Canada) (or any successor thereto), the
Companies' Creditors Arrangement Act (Canada) (or any successor thereto), or
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (or any successor thereto), any similar Canadian
federal or provincial, United States or foreign law for the relief of debtors.
The term "Receiver"
means any receiver (interim or otherwise), trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
Notwithstanding
the above, no Event of Default under clauses (4) or (5) above shall occur until
the Trustee notifies the Company in writing, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding notify the Company
and the Trustee in writing, of the Default (a "Notice of Default"), and the
Company does not cure the Default within the time specified in clause (4) or
(5), as applicable, after receipt of such notice.
If an
Event of Default (other than an Event of Default specified in clause (6) or (7)
above) occurs and is continuing with respect to the Company, the Trustee may, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the
Trustee, declare the principal amount and accrued and unpaid interest, if any,
through the date of declaration on all the Securities to be immediately due and
payable. Upon such a declaration, such principal amount and such accrued and
unpaid interest, if any, shall be due and payable immediately. If an Event of
Default specified in clauses (6) or (7) occurs in respect of the Company and is
continuing, the principal amount and accrued but unpaid interest, if any, on all
the Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of
Securities. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (a) all existing Events of Default, other than the
nonpayment of the principal of the Securities which have become due solely by
such declaration of acceleration, have been cured or waived; (b) to the extent
the payment of such interest is lawful, interest (calculated at the rate per
annum borne by the Securities) on overdue installments of interest and overdue
principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction; and (d) all payments
due to the Trustee and any predecessor Trustee under the Indenture have been
made. No such rescission shall affect any subsequent Default or
impair
-13-
any right
consequent thereto. Holders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
Default (except a Default in payment of principal or interest) if and so long as
it determines that withholding notice is in their interests. The Company is
required to file periodic certificates with the Trustee as to the Company's
compliance with the Indenture and knowledge or status of any
Default.
20. TRUSTEE
DEALINGS WITH THE COMPANY
CIBC
Mellon Trust Company, the initial Trustee under the Indenture, in its individual
or any other capacity, may make loans to, accept deposits from and perform
services for the Company or an Affiliate of the Company, and may otherwise deal
with the Company or an Affiliate of the Company, as if it were not the
Trustee.
21. NO
RECOURSE AGAINST OTHERS
A
director, officer, employee or shareholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Security by accepting this
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of this Security.
22. AUTHENTICATION
This
Security shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the other side of this
Security.
23. ABBREVIATIONS
AND DEFINITIONS
Customary
abbreviations may be used in the name of the Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms
defined in the Indenture and used in this Security but not specifically defined
herein are defined in the Indenture and are used herein as so
defined.
24. INDENTURE
TO CONTROL; GOVERNING LAW
In the
case of any conflict between the provisions of this Security and the Indenture,
the provisions of the Indenture shall control. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the Province
of Ontario. The Company has submitted to the non exclusive jurisdiction of any
court of the Province of Ontario for purposes of all legal actions and
proceedings instituted in connection with the Indenture and the
Securities.
-14-
The
Company will furnish to any Holder, upon written request and without charge, a
copy of the Indenture. Requests may be made to: ACE Aviation Holdings Inc.,
▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: Chief Legal
Officer, Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇, Telephone
No: (▇▇▇) ▇▇▇-▇▇▇▇.
SCHEDULE
1
TO
THE GLOBAL SECURITY
Initial
Principal Amount: Cdn$l
The
following exchanges, purchase, redemptions, purchases or conversions of a part
of this Global Security have been made:
Adjustments
|
Date
|
Amount
of
Increase
|
Amount
of
Decrease
|
New
Principal
Amount
|
Maturity
Date
|
Authorization
|
Authorization:
CIBC
MELLON TRUST COMPANY
|
By:
|
ASSIGNMENT
FORM
To assign
this Security, fill in the form below:
|
I
or we assign and transfer this Security to
|
|
|
(Insert
assignee's soc. sec. or tax I.D. no.)
|
|
|
(Print
or type assignee's name, address and postal code)
|
|
|
and
irrevocably appoint
|
|
|
agent
to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
|
|
|
Your
signature
|
|||
|
Date:
|
|||
|
(sign
exactly as your name appears on the other side of this
Security)
|
|||
|
*Signature
guaranteed by:
|
|||
|
By:
|
|||
__________________
|
*
|
The
signature must be guaranteed by a bank, a trust company, a member of a
recognized stock exchange, a member of an acceptable Medallion Guarantee
Program or any other guarantee program acceptable to the
Registrar.
|
RESIDENCY
DECLARATION FORM
ACE
AVIATION HOLDINGS INC.
TO: CIBC
Mellon Trust Company
With
respect to the issuance of Class A variable voting shares or Class B
voting shares of ACE Aviation Holdings Inc. (the "Company"), undersigned
transferee hereby certifies and declares that:
|
(a)
|
o
|
it
will be the registered holder and the
beneficial owner and will have
Control of the shares to be transferred; or
|
|
o
|
it
will either be the registered holder (including an agent or a nominee)
or the
beneficial owner or will have
Control of the shares to be transferred.
|
|
|
(b)
|
o
|
the
registered holder and the
beneficial owner and the person
who will have Control of the shares to be transferred is a Canadian (as
defined below); or
|
|
o
|
either
one of the registered holder or the
beneficial owner or the person
who will have Control of the shares to be transferred is not a Canadian
(as defined below).
|
"Control"
means control in any manner that results in control in fact, whether directly
through the ownership of securities or indirectly through a trust, an agreement
or arrangement, the ownership of any body corporate or otherwise, and, without
limiting the generality of the foregoing,
|
(a)
|
a
body corporate is deemed to be controlled by a person
if
|
|
|
(i)
|
securities
of the body corporate to which are attached more than 50% of the votes
that may be cast to elect directors of the body corporate are held,
otherwise than by way of security only, by or for the benefit of that
person; and
|
|
|
(ii)
|
the
votes attached to those securities are sufficient, if exercised, to elect
a majority of the directors of the body corporate;
and
|
|
(b)
|
a
partnership or unincorporated organization is deemed to be controlled by a
person if an ownership interest therein representing more than 50% of the
assets of the partnership or organization is held, otherwise than by way
of security only, by or for the benefit of that
person.
|
If the
registered holder, the beneficial owner and the person who Controls shares of
the Company are not the same person, all of them need to be Canadians in order
to hold Class B voting shares of the Company. If one of them is a
non-Canadian, they are only allowed to hold Class A variable voting shares
of the Company.
For
purposes of this declaration, the term "Canadian" shall have the meaning
ascribed to it in the Canada
Transportation Act, namely:
|
|
(a)
|
a
Canadian citizen pursuant to subsection 3(1) of the Citizenship Act or a
permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act (Canada),
|
|
|
(b)
|
a
government in Canada or an agent of such a government,
or
|
|
|
(c)
|
a
corporation or other entity that is incorporated or formed under the laws
of Canada or a province, that is controlled in fact by Canadians and of
which at least 75%, or such lesser percentage as the Governor in Council
may by regulation specify, of the voting interests are owned and
controlled by Canadians.
|
A "Canadian citizen" means,
pursuant to subsection 3(1) of the Citizenship Act, (a) a
person who was born in Canada after February 14, 1977; (b) a person
who was born outside of Canada after February 14, 1977 and at the time of
his or her birth one of his or her parents, other than a parent who adopted him
or her, was a Canadian citizen; (c) a person who has been granted or has
acquired citizenship and, in the case of a person who is 14 years of age or
over on the day that he or she is granted citizenship, he or she has taken the
oath of citizenship; (d) a person who was a citizen immediately before
February 15, 1977; or (e) a person who was entitled, immediately
before February 15, 1977, to become a citizen under paragraph 5(1)(b) of
the former Canadian
Citizenship Act.
|
DATED
the
|
day
of
|
.
|
|
Signature
of the Declarant
|
NOTICE
OF ELECTION UPON TAX REDEMPTION FORM
Certificate
No. of Security: ___________
If you
elect not to have this Security redeemed by the Company pursuant to
Section 3.8 of the Indenture, check the box: [ ]
If you
elect to have only part of this Security redeemed by the Company pursuant to
Section 3.8 of the Indenture, state the principal amount:
$____________________________
(must be
in an integral multiple of $1,000)
|
Your
Signature:
|
|||
|
Date :
|
|||
|
(Sign
exactly as your name appears on the other side of this
Security)
|
|||
|
*Signature
guaranteed by:
|
|||
|
By:
|
|||
__________________
|
*
|
The
signature must be guaranteed by a bank, a trust company, a member of a
recognized stock exchange, a member of an acceptable Medallion Guarantee
Program or any other guarantee program acceptable to the
Registrar.
|
CONVERSION
NOTICE FORM
To
convert this Security into Shares of the Company, check the box:
To
convert only part of this Security, state the principal amount to be converted
(must be $1,000 or a integral multiple of $1,000): $____________.
If you
want the stock certificate made out in another person's name, fill in the form
below:
|
(Insert
assignee's soc. sec. or tax I.D. no.)
|
|
|
|
|
|
|
|
|
(Print
or type assignee's name, address and postal
code)
|
|
|
Your
Signature:
|
|||
|
Date :
|
|||
|
(Sign
exactly as your name appears on the other side of this
Security)
|
|||
|
*Signature
guaranteed by:
|
|||
|
By:
|
|||
__________________
|
*
|
The
signature must be guaranteed by a bank, a trust company, a member of a
recognized stock exchange, a member of an acceptable Medallion Guarantee
Program or any other guarantee program acceptable to the
Registrar.
|
CHANGE
OF CONTROL REPURCHASE NOTICE FORM
To: ACE
Aviation Holdings Inc.
The
undersigned registered owner of this Security hereby irrevocably acknowledges
receipt of a notice from ACE Aviation Holdings Inc. (the "Company") as to the occurrence
of a Change of Control with respect to the Company and setting forth the terms
and conditions of the Company's offer to purchase all outstanding Securities and
accepts such offer and instructs the Company to purchase the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Security at the Change of Control Repurchase
Price, together with accrued and unpaid interest to, but excluding, such date,
to the registered Holder hereof.
|
Dated:
|
|||
|
(Signature(s))
|
|||
|
*
Signature Guaranty
|
|||
|
Principal
amount to be redeemed (in an integral multiple of $1,000, if less than
all):
|
|||
NOTICE:
The signature to the foregoing Election must correspond to the Name as written
upon the face of this Security in every particular, without any alteration or
change whatsoever.
__________________
|
*
|
The
signature must be guaranteed by a bank, a trust company, a member of a
recognized stock exchange, a member of an acceptable Medallion Guarantee
Program or any other guarantee program acceptable to the
Registrar.
|
OPTION
TO ELECT PURCHASE ON SPECIFIED DATES FORM
To: ACE
Aviation Holdings Inc.
The
undersigned hereby requests and instructs ACE Aviation Holdings Inc. to purchase
the entire principal amount of this Security, or the portion thereof (which is
$1,000 or an integral multiple thereof) below designated, on ________________ in
accordance with the terms of the Indenture referred to in this Security at the
Put Right Purchase Price for the next occurring Put Right Purchase Date to the
registered Holder hereof.
|
Dated:
|
|||
|
(Signature(s))
|
|||
|
*
Signature Guaranty
|
|||
|
Principal
amount to be redeemed (in an integral multiple of $1,000, if less than
all):
|
|||
NOTICE:
The signature to the foregoing Election must correspond to the Name as written
upon the face of this Security in every particular, without any alteration or
change whatsoever.
__________________
|
*
|
The
signature must be guaranteed by a bank, a trust company, a member of a
recognized stock exchange, a member of an acceptable Medallion Guarantee
Program or any other guarantee program acceptable to the
Registrar.
|
FORM
OF CERTIFICATE OF EXCHANGE OR TRANSFER
FOR
SECURITIES BEARING A RESTRICTIVE LEGEND
|
TO:
|
ACE
Aviation Holdings Inc.
|
||
|
▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|||
|
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
|
|||
|
▇▇▇
▇▇▇
|
|||
|
-
and -
|
|||
|
CIBC
Mellon Trust Company
|
|||
|
as
trustee
|
|||
|
for
the 4.25% Convertible Senior Notes due 2035 of
|
|||
|
ACE
Aviation Holdings Inc.
|
|||
Re: 4.25% Convertible Senior
Notes due 2035
Reference
is hereby made to the Indenture dated as of April 6, 2005, (the "Indenture"), among ACE
Aviation Holdings Inc., a corporation duly organized under the laws of Canada
(the "Company"), and
CIBC Mellon Trust company, a trust company organized and existing under the laws
of Canada, as Trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
_______________
(the "Transferor") owns
and proposes to exchange or transfer (the "Transfer") _______________
principal amount of 4.25% Convertible Senior Notes due 2035 (the "Securities") of ACE Aviation
Holdings Inc. (the "Company") held as a beneficial
interest in the form of the Restricted Global Security (CUSIP No. ____________)
with the Depository in the name of the Transferor. The Transferor has requested
an exchange or transfer of such Securities for an equivalent beneficial interest
in the Unrestricted Global Security (CUSIP No. ____________). In connection with
the Transfer, the Transferor hereby certifies to the Company and CIBC Mellon
Trust Company (the "Transfer
Agent") as follows:
[CHECK
THE APPROPRIATE BOX]
1. £ Check if
the Transfer is being made to the Company. The Transfer is being effected
to the Company or a subsidiary thereof.
2. £ Check if
the Transfer is being made pursuant to a registration statement. The Transfer is being
made pursuant to a registration statement which has become
-2-
effective
under the United
States Securities Act of 1933, as amended (the "Securities Act"). Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred or exchanged beneficial interest or definitive
Security will no longer be a Restricted Security subject to the restrictions on
transfer enumerated in the Restrictive Legend printed on the Restricted Global
Security or Restricted Security, as applicable, and in the
Indenture.
3. £ Check if
the Transfer is being made pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act,
and, accordingly, the Transferor hereby further certifies that the Securities
are being transferred or exchanged to a person that the Transferor reasonably
believed and believes is purchasing the Securities for its own account, or for
one or more accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A.
4. £ Check if
the Transfer is being made pursuant to Rule 904 of Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 904 under the
Securities Act, and, accordingly, the Transferor hereby further certifies that
(1) the Transferor is not an affiliate of the Company as that term is defined in
Rule 405 under the Securities Act, (2) the offer of such securities was not made
to a person in the United States and either (a) at the time the buy order was
originated, the buyer was outside the United States, or the seller and any
person acting on its behalf reasonably believed that the buyer was outside the
United States, or (b) the transaction was executed on or through the facilities
of The Toronto Stock Exchange or another designated offshore securities market
as defined in Regulation S under the Securities Act and neither the Transferor
nor any person acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States, (3) neither the seller nor any
affiliate of the seller nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts in the United States in
connection with the offer and sale of such securities and (4) the contemplated
sale is not a transaction, or part of a series of transactions which, although
in technical compliance with Regulation S, is part of a plan or scheme to evade
the registration provisions of the Securities Act. Terms used in this
paragraph have the meanings given to them by Regulation S. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred or exchanged beneficial interest or definitive Security will no
longer be a Restricted Security subject to the restrictions on transfer
enumerated in the Restrictive Legend printed on the Restricted Global Security
or Restricted Security, as applicable, and in the Indenture.
5. £ Check if
the Transfer is being made pursuant to Rule 144(k). The Transfer is being
effected pursuant to and in accordance with Rule 144(k) under the Securities Act
and, accordingly, the Transferor hereby further certifies that (1) the
Securities were acquired by the Transferor on _____________________ (at least
two years prior to the date hereof), in an offering exempt from registration
under the Securities Act and, upon such acquisition, the Transferor fully paid
for the Securities, and (2) the Transferor is not, and has not been during the
preceding three months, an affiliate of the Company as that term is defined in
Rule 144(a)(i) under the Securities Act. In lieu of the certifications
provided in Section 5 of this Certificate, the Transferor may deliver to
the Transfer Agent such other documentation reasonably satisfactory to the
Company to the effect that the requested Transfer is permitted under
Rule 144(k). Upon
-3-
consummation
of the proposed Transfer in accordance with the terms of the Indenture, the
transferred or exchanged beneficial interest or definitive Security will no
longer be a Restricted Security subject to the restrictions on transfer
enumerated in the Restrictive Legend printed on the Restricted Global Security
or Restricted Security, as applicable, and in the Indenture.
6. £ Check if
the Transfer is being made pursuant to an exemption from registration provided
by Rule 144 under the Securities Act (other than Rule 144(k)) or any
other available exemption from the registration requirements of the Securities
Act other than as set forth in the preceding paragraphs. The Transfer is
being effected pursuant to and in accordance with an exemption from registration
provided by Rule 144 under the Securities Act (other than Rule
144(k)) or any other available exemption from the registration
requirements of the Securities Act other than as set forth in the preceding
paragraphs. In addition to this Certificate, the Transferor must furnish to the
Transfer Agent and the Company an opinion of counsel, of recognized standing
reasonably satisfactory to the Company and the Transfer Agent, prior to the
sale, to the effect that registration under the Securities Act is not required
in connection with the Transfer. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred or exchanged
beneficial interest or definitive Security will no longer be a Restricted
Security subject to the restrictions on transfer enumerated in the Restrictive
Legend printed on the Restricted Global Security or Restricted Security, as
applicable, and in the Indenture.
This
Certificate and the statements contained herein are made for the benefit of the
Company and the Transfer Agent in connection with the Transfer of the Securities
contemplated hereby. The Transferor undertakes to inform the Company
and the Transfer Agent promptly upon becoming aware of any development or
occurrence that would render any of the foregoing representations inaccurate or
incomplete prior to the completion of the Transfer.
|
Dated:
|
||||
|
Name
of Seller
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||