Exhibit 99.5
COMPUTERSHARE TRUST COMPANY OF CANADA,
AS PURCHASE CONTRACT AGENT,
CITIBANK, N.A.,
AS CUSTODIAN,
AND
HOLDERS (AS DEFINED HEREIN)
FROM TIME TO TIME
--------------------------
CUSTODIAL AGREEMENT
--------------------------
DATED AS OF JUNE 12, 2002
TABLE OF CONTENTS
PAGE
PARTIES ....................................................................... 1
RECITALS ...................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Interpretation ................................................. 1
Section 1.02. Definitions .................................................... 2
"Affiliate" .................................................... 2
"Agent" ........................................................ 2
"Agreement" .................................................... 2
"Authorized Person" ............................................ 2
"Clearing Agency" .............................................. 2
"Corporate Trust Office" ....................................... 2
"Custodian" .................................................... 2
"Custody Account" .............................................. 3
"Force Majeure Event" .......................................... 3
"Holder" ....................................................... 3
"Instructions" ................................................. 3
"Outstanding Units" ............................................ 3
"Outstanding Unit Certificates" ................................ 3
"Person" ....................................................... 4
"Predecessor Unit Certificate" ................................. 4
"Purchase Contract Agreement" .................................. 4
"Responsible Officer" .......................................... 4
"Settlement System" ............................................ 4
"TIA" .......................................................... 4
"Treasury Strips" .............................................. 4
"Underwriting Agreement" .......................................
"Unit" ......................................................... 4
Section 1.03. Effect of Headings and Table of Contents ....................... 4
Section 1.04. Successors and Assigns ......................................... 5
Section 1.05. Severability Clause ............................................ 5
Section 1.06. Benefits of Agreement .......................................... 5
Section 1.07. Governing Law .................................................. 5
Section 1.08. Appointment of Affiliate for Service of Process ................ 5
Section 1.09. Legal Holidays ................................................. 5
Section 1.10. Counterparts ................................................... 6
Section 1.11. Inspection of Agreement ........................................ 6
Section 1.12. Indemnification and Limitation of Liability..................... 6
ARTICLE TWO
THE TREASURY STRIPS
Section 2.01. Delivery of Treasury Strips to the Custodian ................... 7
Section 2.02. Acceptance by Custodian ........................................ 7
Section 2.03. Payment of Amounts Received Upon Maturity of Treasury Strips ... 8
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 2.04. Establishment of Custody Account ............................... 8
Section 2.05. Collection of Payments on Treasury Strips ...................... 8
Section 2.06. Delivery of Treasury Strips to Holders ......................... 8
ARTICLE THREE
THE CUSTODIAN
Section 3.01. Certain Duties and Responsibilities ............................ 10
Section 3.02. Certain Rights of Custodian .................................... 11
Section 3.03. Use of Third Parties and Limitations on Custodian's Liability .. 11
Section 3.04. Money Held by Custodian ........................................ 12
Section 3.05. Compensation and Expense ....................................... 13
Section 3.06. Corporate Agent Required; Eligibility .......................... 13
Section 3.07. Resignation and Removal; Appointment of Successor .............. 13
Section 3.08. Acceptance of Appointment by Successor ......................... 15
Section 3.09. Merger, Conversion, Consolidation or Succession to Business .... 15
Section 3.10. No Obligations of Custodian .................................... 15
Section 3.11. Tax Compliance ................................................. 15
ARTICLE FOUR
THE AGENT
Section 4.01. Agent's Direct Liability ....................................... 16
Section 4.02. Force Majeure .................................................. 16
ARTICLE FIVE
SUPPLEMENTAL AGREEMENTS
Section 5.01. Supplemental Agreements without Consent of Holders ............. 16
Section 5.02. Supplemental Agreements with Consent of Holders ................ 17
Section 5.03. Effect of Supplemental Agreements .............................. 17
ARTICLE SIX
COVENANTS
Section 6.01. Performance Under this Agreement ............................... 17
ARTICLE SEVEN
GENERAL CONDITIONS
Section 7.01. Entire Agreement ............................................... 17
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PARTIES
CUSTODIAL AGREEMENT, dated as of June 12, 2002, among COMPUTERSHARE
TRUST COMPANY OF CANADA, acting as purchase contract agent (the "Agent"),
CITIBANK, N.A., acting as custodian (the "Custodian"), and HOLDERS (as defined
herein) from time to time.
RECITALS
WHEREAS, on and from the date hereof the Holders and the Company
have entered into the Purchase Contracts pursuant to the Purchase Contract and
Unit Agreement, dated as of June 12, 2002 (the "Purchase Contract Agreement"),
under which the Company has agreed to issue and deliver Common Shares to the
Holders on (i) the Settlement Date, (ii) at a Holder's option, on an Early
Settlement Date or Early Settlement Upon Cash Merger Date or (iii) upon an
Acceleration Event in consideration of the purchase price of the Purchase
Contracts paid by the initial Holders to the Company on the closing date of the
Underwriting Agreement; and
WHEREAS, simultaneously with entering into the Purchase Contracts
with the Company, the initial Holders have acquired from Credit Suisse First
Boston Corporation, one of the representatives of the underwriters named in the
Underwriting Agreement, Treasury Strips; and
WHEREAS, for the convenience of the Holders, the Holders wish to
appoint the Custodian as their custodian to hold the Treasury Strips for them
and on their behalf and to forward to the Holders all payments of the Treasury
Strips as and when they mature and to deliver the Treasury Strips to the Holders
under certain circumstances as set forth herein;
NOW THEREFORE, in consideration of the premises and the purchase of
the Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Interpretation.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) capitalized terms used but not defined herein have those
meanings ascribed to them in the Purchase Contract Agreement;
(2) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(3) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(4) all references to "$" herein means United States dollars.
Section 1.02. Definitions.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph
of this Agreement until a successor Agent has become such pursuant to the
applicable provisions of the Purchase Contract Agreement, and thereafter "Agent"
means the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Authorized Person" means the Agent or any person (including any
individual or entity) authorized by the Agent to act on its behalf in the
performance of any act, discretion or duty under this Agreement (including, for
the avoidance of doubt, any officer or employee of such person) in a notice
reasonably acceptable to the Custodian.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee of that
organization, a Global Unit Certificate is registered in the Unit Register.
"Corporate Trust Office" means, for identification only, the
principal office of the Custodian in New York, New York, at which at any
particular time the Custodian's corporate trust business is administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Nothing in this definition requires the Custodian to perform this Agreement as
fiduciary or within its corporate trust operations.
"Custodian" means the Person named as the "Custodian" in the first
paragraph of this Agreement until a successor Custodian has become such pursuant
to the applicable provisions of this Agreement, and thereafter "Custodian" means
the Person who is then the Custodian hereunder.
"Custody Account" has the meaning set forth in Section 2.04.
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"Force Majeure Event" means any event due to any cause beyond the
reasonable control of any party to this Agreement, such as restrictions on
convertibility or transferability, requisitions, involuntary transfers,
unavailability of communications systems, sabotage, fire, flood, explosion, acts
of God, civil commotion, strikes or industrial action of any kind, riots,
insurrection, war or acts of government.
"Holder" means a Person in whose name the Unit evidenced by such
Unit Certificate (or the Unit Certificate evidencing such Unit) is registered in
the Unit Register. For purposes of this Agreement, Holder shall mean a Clearing
Agency unless the Custodian shall agree otherwise.
"Instructions" means any and all instructions (including approvals,
consents and notices) received by the Custodian from, or reasonably believed by
the Custodian to be from, any Authorized Person, including any instructions
communicated through any manual or electronic medium or system agreed between
the Agent and the Custodian.
"Outstanding Units" means, as of the date of determination, all
Units evidenced by then Outstanding Unit Certificates, except on and after any
applicable Early Settlement Date or Early Settlement Upon Cash Merger Date,
Units as to which the Holder has elected to effect Early Settlement or Early
Settlement Upon Cash Merger, as the case may be, of the related Purchase
Contracts; provided, however, that in determining whether the Holders of the
requisite number of Units have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Units owned by the Company or
any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Units which the Agent knows to be so owned shall be so
disregarded. Units so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Agent the pledgee's right so to act with respect to such Units and that the
pledgee is not the Company or any Affiliate of the Company.
"Outstanding Unit Certificates" means, as of the date of
determination, all Unit Certificates theretofore executed and delivered under
the Purchase Contract Agreement, except:
(i) Unit Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation; and
(ii) Unit Certificates in exchange for or in lieu of which other
Unit Certificates have been authenticated, executed on behalf of the
Holder and delivered pursuant to this Agreement, other than any such Unit
Certificate in respect of which there shall have been presented to the
Agent proof satisfactory to it that such Unit Certificate is held by a
bona fide purchaser.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Unit Certificate" of any particular Unit Certificate
means every previous Unit Certificate evidencing all or a portion of the rights
and obligations of the Holder
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under the Units evidenced thereby; and, for the purposes of this definition, any
Unit Certificate authenticated and delivered under Section 11.06 of the Purchase
Contract Agreement in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Purchase Contract Agreement" has the meaning specified in the
recitals to this Agreement.
"Responsible Officer", when used with respect to the Custodian,
means any officer or officers of the Custodian assigned by the Custodian to
administer its custodial services.
"Settlement System" means any clearing agency, settlement system or
depository (including any entity that acts as a system for the central handling
of securities in the country where it is incorporated or organized or that acts
as a transactional system for the central handling of securities) used in
connection with transactions relating to securities and any nominee of the
foregoing.
"TIA" means the United States Trust Indenture Act of 1939, as
amended, or any successor statute.
"Treasury Strips" means the zero-coupon United States Treasury
securities in the face amounts, and with the maturity dates, specified in
Schedule 1 hereto.
"Underwriting Agreement" means the underwriting agreement relating
to the Units dated June 6, 2002 between the Company and the several underwriters
named therein.
"Unit" means and evidences the ownership by a Holder of (i) one
Purchase Contract and (ii) six Treasury Strips of $1,000 denomination each that
mature from February 15, 2003 through August 15, 2005 and a pro rata portion of
Treasury Strips maturing on August 15, 2002, as specified in Schedule 1 hereto.
Section 1.03. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof. The
parties hereto do not assume any responsibility for the correctness of the
recitals contained herein.
Section 1.04. Successors and Assigns.
All covenants and agreements in this Agreement by the Custodian
shall bind its successors and assigns, whether so expressed or not.
Section 1.05. Severability Clause.
In case any provision in this Agreement or in the Units shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
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Section 1.06. Benefits of Agreement.
Nothing in this Agreement or in the Units, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefits or any legal or equitable right, remedy or claim
under this Agreement. The Holders from time to time shall be beneficiaries of
this Agreement and shall be bound by all of the terms and conditions hereof and
of the Units as evidenced by their Unit Certificates, by their acceptance of
delivery thereof.
Section 1.07. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 1.08. Appointment of Affiliate for Service of Process.
The Custodian hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Custodian hereby nominates, constitutes
and appoints, and so long as Citibank, N.A. continues to be the Custodian under
this Agreement, shall maintain its Canadian branch office (the "Custodian's
Canadian Branch") located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, as its true and lawful attorney, to act as such, and on behalf
of the Custodian and within the Province of Ontario to accept service of
process, and to receive all lawful notices, and service of process or of papers
and notices upon the Custodian's Canadian Branch shall be accepted by the
Custodian as sufficient service in the premises and written notice of said
service to the Custodian by the Person serving the same to the address provided
shall be deemed in every respect effective service of process upon the Custodian
in any such suit or proceeding. The Custodian shall provide to the Agent
evidence of acceptance of such appointment concurrently with execution of this
Agreement.
Section 1.09. Legal Holidays.
If any Payment Date, any Early Settlement Date, any Early Settlement
Upon Cash Merger Date or the Settlement Date falls on a day that is not a
Business Day, then (notwithstanding any other provision of this Agreement or of
the Unit Certificates) payments in respect of amounts received by the Custodian
on the Treasury Strips or deliveries of Treasury Strips, as the case may be,
shall not be made on such date, but such payments or such deliveries shall be
made on the next succeeding Business Day with the same force and effect as if
made on such Payment Date, Early Settlement Date, Early Settlement Upon Cash
Merger Date or Settlement Date, as the case may be; provided, that no interest
shall accrue or be payable for the period from and after any such Payment Date,
Early Settlement Date or Settlement Date, as the case may be.
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Section 1.10. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.11. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times
at the Corporate Trust Office and the Stock Transfer Office for inspection by
any Holder.
Section 1.12. Indemnification and Limitation of Liability.
The Agent agrees to indemnify the Custodian and to defend and hold
the Custodian harmless from any and all losses, costs, damages and expenses
(including reasonable legal fees) and liabilities for any claims, demands or
actions (each referred to as a "Loss" or collectively as "Losses"), incurred by
the Custodian as a result of or in connection with this Agreement, where such
Loss is directly and principally caused by the negligence, willful misconduct or
fraud of the Agent. Under no circumstance whatsoever will the Agent be liable to
the Custodian for special, incidental, indirect or consequential losses or
damages (including, but not limited to, lost profits) even if advised of the
possibility of such losses or damages.
The Custodian agrees to indemnify the Agent and to defend and hold
the Agent harmless from any and all Losses incurred by the Agent as a result of
or in connection with this Agreement, where such Losses is directly and
principally caused by the negligence, willful misconduct or fraud of the
Custodian. Under no circumstance whatsoever will the Custodian be liable to the
Agent for special, incidental, indirect or consequential losses or damages
(including, but not limited to, lost profits) even if advised of the possibility
of such losses or damages.
Promptly after receiving any notice of a claim, demand or action
(each referred to as a "Claim"), which may give rise to indemnification, the
indemnified party will notify the indemnifying party in writing of the
particulars thereof, provided that the omission to so notify the indemnifying
party shall not relieve the indemnifying party of any liability which the
indemnifying party may have to the other indemnified party except and only to
the extent that any such delay in or failure to give notice as herein required
prejudices the defense of such Claim or results in any material increase in the
liability which the indemnifying party has under this indemnify. The
indemnifying party shall have thirty (30) days after receipt of the notice to
undertake, conduct and control, through counsel of its own choosing and all its
own expense, the settlement or defense of the Claim. The indemnified party will
not, without the prior written approval of the indemnifying party, settle,
compromise, consent to the entry of any judgment in or otherwise seek to
terminate any Claim in respect of which indemnification may be sought hereunder.
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ARTICLE TWO
The Treasury Strips
Section 2.01. Delivery of Treasury Strips to the Custodian.
On the closing date of the offering of the Units under the Underwriting
Agreement, the initial Holders have acquired from Credit Suisse First Boston
Corporation (as one of the Representatives on behalf of itself and the other
underwriters named in the Underwriting Agreement) the Treasury Strips described
on Schedule 1 hereto and directed them to be delivered to the Custodian by
causing the Custodian or its nominee to be the holder of security entitlements
for such Treasury Strips on the records of the Federal Reserve Bank of New York
for and on behalf of the Holders, and the Custodian has accepted delivery of the
Treasury Strips. Each Unit evidences ownership of the related Treasury Strips
held by the Custodian hereunder as agent for and on behalf of the Holders as
identified by a security entitlement credited to an account on the records of
the Custodian. For greater certainty, each Holder shall have a separate property
interest in each of its Treasury Strips (except that each Holder shall have a
pro rata interest in the Treasury Strips that mature on August 15, 2002) and
shall have no interest whatsoever in any other Holder's Treasury Strips and
Holders shall not be considered to own Treasury Strips as joint tenants or
tenants in common. The Custodian shall act as agent for the Holders and no
provision hereof is intended to create or shall be construed as having created a
trust of any kind.
Section 2.02. Acceptance by Custodian.
The Custodian hereby acknowledges that, on the closing date of the
offering of the Units under the Underwriting Agreement, the Custodian has
received the Treasury Strips listed in Schedule 1 as instructed by the Agent for
and on behalf of the Holders of Treasury Strips evidenced by Units pursuant to,
and in the manner described in, Section 2.01. The Custodian agrees to accept
additional free deliveries of Treasury Strips as instructed by the Agent. The
Custodian shall accept all Treasury Strips delivered (or caused to be delivered)
free hereunder as custodian for the Holders and the Custodian shall hold the
Treasury Strips in a separate Custody Account as defined in and as provided in
Section 2.04 for and on behalf of the Holders. The Custodian shall hold the
Treasury Strips delivered to it pursuant to this Agreement solely as custodian
and not as a fiduciary, identified separate and apart from the general assets of
the Custodian for and on behalf of the Holders. The Custodian shall not have the
authority or obligation to assign, transfer, pledge, set off or otherwise
dispose of any of the Treasury Strips, or of any interests therein, except as
provided hereunder or as required by law.
Section 2.03. Payment of Amounts Received Upon Maturity of Treasury
Strips.
On any Payment Date on which amounts are received by the Custodian
on payments of the Treasury Strips (or, if such amounts are received between
Payment Dates, on the next Payment Date after the Custodian receives such
amounts), the Custodian shall forward all such amounts the Custodian receives to
the Holders as instructed by the Agent.
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Section 2.04. Establishment of Custody Account.
The Custodian, as agent for the Holders, shall establish and
maintain a separate account bearing a designation clearly indicating that the
funds and assets deposited therein are held in custody for the Holders (the
"Custody Account"). The Custody Account shall at all times be maintained as a
segregated custodial account identified separate and apart from the general
assets of the Custodian and all other accounts, funds and property of or in the
possession of the Custodian, including any other custody account. The Treasury
Strips and any moneys held in the Custody Account shall not at any time be
commingled with any other assets or property held by the Custodian.
Notwithstanding anything else in this Agreement, the Custodian shall not hold
cash as a fiduciary. The Custodian shall at all times maintain accurate records
reflecting each transaction in the Custody Account in connection with the Units
and the related Treasury Strips evidenced thereby. The Custodian shall have no
power or authority to assign, transfer, pledge, set off or otherwise dispose of
any of the Treasury Strips, or any interest therein, except as provided
hereunder or as required by law. The Custody Account shall be non-interest
bearing and the amounts therein shall not be invested.
Section 2.05. Collection of Payments on Treasury Strips.
Not later than the close of business on each Business Day on which
the Custodian receives any payments of the Treasury Strips in the form of
immediately available funds, the Custodian shall credit to or deposit in the
Custody Account the amount of such payment. All moneys so received shall be held
by the Custodian in the Custody Account until the Custodian receives the Agent's
instruction to transfer funds.
Section 2.06. Delivery of Treasury Strips to Holders.
(a) Treasury Strips shall be delivered to Holders only and in such
denominations as instructed by the Agent.
(b) The Custodian is entitled to rely and act upon Instructions of
any Authorized Person until the Custodian has received notice of any change from
the Agent and has had a reasonable time to note and implement such change. The
Custodian is authorized to rely upon any Instructions received by any means,
provided that the Custodian and the Agent have agreed upon the means of
transmission and the method of identification for the Instructions. In
particular:
(1) The Agent and the Custodian will comply with security procedures
currently established by the Custodian on the date hereof that are
designed to verify the origination of Instructions; provided, however, to
the extent such procedures are modified after the date hereof, the
Custodian will provide the Agent with reasonable commercial notice of any
change and such change will be a commercially reasonable change.
(2) The Custodian is not responsible for errors or omissions made by
the Agent or resulting from fraud or the duplication of any Instruction by
the Agent, and the Custodian may act on any Instruction by reference to an
account number only, even if any account name is provided.
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(3) The Custodian may act on an Instruction if it reasonably
believes it contains sufficient information.
(4) The Custodian may decide not to act on an Instruction where it
reasonably doubts its contents, authorization, origination or compliance
with any security procedures and will promptly notify the Agent of its
decision.
(5) If the Custodian acts on any Instruction sent manually
by facsimile or by telephone, then, if the Custodian complies with
the security procedures, the Agent will be responsible for any loss the
Custodian may incur in connection with that Instruction. The Agent
expressly acknowledges that the Agent is aware that the use of manual
forms of communication to convey Instructions increases the risk of error,
security and privacy issues and fraudulent activities.
(6) Instructions are to be given in the English language.
(7) The Custodian is obligated to act on Instructions only within
applicable cut-off times on banking days when the Federal Reserve Bank of
New York is open for business.
(c) Absent a contrary Instruction, the Custodian shall carry out the
following without further Instructions:
(1) in the Agent's name or on its behalf, sign any affidavits,
certificates of ownership and other certificates and documents relating to
Treasury Strips which may be required by any tax or regulatory authority;
(2) notify the Agent of notices, circulars, reports and
announcements which the Custodian has received, in the course of acting in
the capacity of custodian, concerning Treasury Strips held on the Agent's
behalf that require discretionary action;
(3) make any payment by debiting the Custody Account or any other
designated account of the Agent with the Custodian as required to effect
any Instruction; and
(4) attend to all non-discretionary matters in connection with
anything provided in this Section or any Instruction.
ARTICLE THREE
The Custodian
Section 3.01. Certain Duties and Responsibilities.
(a) The Custodian undertakes to perform, with respect to the
Treasury Strips, such duties and only such duties as are specifically set forth
in this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Custodian.
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(b) The Custodian shall exercise the due care of a professional
custodian for hire.
(c) The Custodian will not be responsible for any loss or damage
suffered by the Agent or any Holder unless the loss or damage results from the
Custodian's negligence, willful misconduct or fraud or the negligence, willful
misconduct or fraud of its nominees or any branch or subsidiary; in the event of
such negligence or willful misconduct the liability of the Custodian in
connection with the loss or damage will not exceed (i) the lesser of (x)
replacement of any Treasury Strips or the market value of the Treasury Strips to
which such loss or damage relates at the time the Agent reasonably should have
been aware of such negligence or willful misconduct and (y) replacement of cash,
plus (ii) compensatory interest. Under no circumstances will the Custodian be
liable to the Agent or any Holder for consequential loss or damage, even if
advised of the possibility of such loss or damage.
(d) No provision of this Agreement shall be construed to relieve the
Custodian from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this paragraph (d) shall not be construed to limit the effect
of paragraph (a) of this Section;
(2) the Custodian shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Custodian was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Custodian 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.
(e) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Custodian shall be subject to the provisions of this
Section.
Section 3.02. Certain Rights of Custodian.
Subject to the provisions of Section 3.01:
(a) the Custodian may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Agent mentioned herein shall
be sufficient if evidenced by an Instruction;
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(c) whenever in the administration of this Agreement the Custodian
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Custodian (unless
other evidence is specifically prescribed herein) may, in the absence of
bad faith on its part, rely upon an Instruction;
(d) the Custodian may consult with counsel and the written advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
Section 3.03. Use of Third Parties and Limitations on Custodian's
Liability.
Subject to the provisions of Section 3.01:
(a) General Authority.
(1) The Custodian is hereby authorized to appoint administrative
support providers as its delegates and to use or participate in Settlement
Systems to perform any of the duties of the Custodian under this
Agreement.
(2) Administrative support providers are those persons utilized by
the Custodian to perform ancillary services of a purely administrative
nature such as couriers, messengers or other commercial transport systems.
(3) Market infrastructures are public utilities, external
telecommunications facilities and other common carriers of electronic and
other messages, and external postal services. Market infrastructures are
not delegates of the Custodian.
(4) Treasury Strips deposited with any Settlement System hereunder
will be subject to the laws, rules, statements of principle and practices
of such Settlement System. Settlement Systems are not delegates of the
Custodian.
(b) Responsibility.
(1) The Custodian shall act in good faith and use reasonable care in
the selection and continued appointment of administrative support
providers, but shall otherwise have no responsibility for performance by
such persons of any of the duties delegated to them under this Agreement.
(2) The Custodian may deposit or procure the deposit of securities
with any Settlement System as required by law, regulation or best market
practice. The Custodian has no responsibility for the selection or
appointment of, or for performance by, any Settlement System or market
infrastructure.
(3) Notwithstanding the foregoing, the Custodian shall be
responsible for the negligence, willful misconduct or fraud of any branch
or subsidiary of the Custodian that is an administrative support provider.
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(4) Except as provided in this Section hereof, the Custodian is not
responsible for the acts, omissions, defaults or insolvency of any third
party including, but not limited to, any broker counterparty or issuer of
securities.
(5) The Custodian's performance of this Agreement is subject to the
relevant local laws, regulations, decrees, orders and government acts, and
the rules, operating procedures and practices of any relevant stock
exchange, Settlement System or market where or through which Instructions
are to be carried out and to which the Custodian is subject and as exists
in the country in which the Custody Account is established.
(6) The Custodian will not be responsible for any failure to perform
any of its obligations (nor will it be responsible for any unavailability
of funds credited to the Custody Account) if such performance is
prevented, hindered or delayed by a Force Majeure Event, in such case its
obligations will be suspended for so long as the Force Majeure Event
continues.
(7) The Custodian is not acting under this Agreement as an
investment manager, nor as an investment, legal or tax adviser to the
Agent or any Holder, and the Custodian's duty is solely to act as a
custodian in accordance with the terms of this Agreement.
(8) The Custodian is not responsible for the form, accuracy or
content of any notice, circular, report, announcement or other material
provided under this Agreement not prepared by the Custodian including the
accuracy or completeness of any translation provided by the Custodian in
regard to such forwarded communication.
Section 3.04. Money Held by Custodian.
Money held by the Custodian hereunder shall not be held for the
Holders as a fiduciary. The Custodian shall be under no obligation to invest or
pay interest on any money received or held by it hereunder.
Section 3.05. Compensation and Expense.
(a) The Custodian acknowledges receipt on the date hereof of:
(1) full compensation in advance for all services to be rendered by
it hereunder during the term of this Agreement; and
(2) payment in advance for all expected expenses to be incurred by
the Custodian in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel during the term of this Agreement).
(b) The Custodian acknowledges that the source of all payments
referred to in subsection (a) above is a portion of the proceeds from the
purchase by Holders of the Treasury Strips evidenced by Units and that all such
amounts have been paid to the Custodian by the Representatives.
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Section 3.06. Corporate Agent Required; Eligibility.
There shall at all times be a Custodian hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in New York, New York, if
there be such a corporation in New York, New York qualified and eligible under
this Article and willing to act on reasonable terms. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Custodian shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 3.07. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Custodian and no appointment of
a successor Custodian pursuant to this Article shall become effective until the
acceptance of appointment by the successor Custodian in accordance with the
applicable requirements of Section 3.08.
(b) The Custodian may resign at any time by giving written notice
thereof to the Agent and the Holders 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Custodian required
by Section 3.08 shall not have been delivered to the Custodian within 30 days
after the giving of such notice of resignation, the resigning Custodian may
petition any court of competent jurisdiction for the appointment of a successor
Custodian.
(c) The Custodian may be removed at any time by Act of the Holders
of a majority of the Outstanding Units delivered to the Agent and the Custodian.
(d) If at any time,
(1) the Custodian fails to comply with Section 3.10(b) of the TIA,
as if the Custodian were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Agent or by any
Holder who has been a bona fide Holder of a Unit for at least six months,
or
(2) the Custodian shall cease to be eligible under Section 3.06 and
shall fail to resign after written request therefor by the Agent or by any
such Holder, or
(3) the Custodian shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Custodian or of its
property shall be appointed or any public officer shall take charge or
control of the Custodian or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Agent or (ii) any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Custodian and the appointment of a successor Custodian.
(e) If the Custodian resigns, is removed or becomes incapable of
acting, or if a vacancy occurs in the office of Custodian for any cause, the
Agent shall promptly appoint a successor Custodian and shall comply with the
applicable requirements of Section 3.08. If no successor Custodian shall have
been so appointed by the Agent and accepted appointment in the manner required
by Section 3.08, any Holder who has been a bona fide Holder for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Custodian.
(f) The Agent shall give, or shall cause such successor Custodian to
give, notice of each resignation and each removal of the Custodian and each
appointment of a successor Custodian by mailing written notice of such event by
first class mail, postage prepaid, to all Holders as their names and addresses
appear in the Unit Register. Each notice shall include the name of the successor
Custodian and the address of its Corporate Trust Office.
(g) Upon the appointment of a successor Custodian pursuant to this
Article, the predecessor Custodian shall immediately deliver to the successor
Custodian any remaining portion of the compensation and expenses received in
advance by the predecessor Custodian pursuant to either Section 3.05 or this
Section 3.07(g). The amount of compensation and expenses the predecessor
Custodian shall deliver will be determined by multiplying the total amount
received by the predecessor Custodian, pursuant to either Section 3.05 or this
Section 3.07(g), by a fraction, which numerator is the number of days remaining
until the Settlement Date and which denominator is the number of days remaining
until the Settlement Date plus the number of days such predecessor Custodian has
performed the duties hereunder.
Section 3.08. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Custodian,
every such successor Custodian so appointed shall execute, acknowledge and
deliver to the Agent and to the retiring Custodian (with a copy to each Holder)
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Custodian shall become effective and such successor
Custodian, without any further act, deed or conveyance, shall become vested with
all the rights, powers, agencies and duties of the retiring Custodian; but, on
the request of the Agent or the successor Custodian, such retiring Custodian
shall execute and deliver an instrument transferring to such successor Custodian
all the rights, powers and trusts of the retiring Custodian and shall duly
assign, transfer and deliver to such successor Custodian all property and money
held by such retiring Custodian hereunder. Every such successor Custodian shall
execute and deliver to the Agent an appointment of an agent of such successor
Custodian for service of process in the Province of Ontario substantially on the
terms of Section 1.08.
(b) Upon the request of any such successor Custodian, the Agent
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Custodian all such rights, powers and agencies
referred to in paragraph (a) of this Section.
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(c) No successor Custodian shall accept its appointment unless at
the time of such acceptance such successor Custodian shall be qualified and
eligible under this Article.
Section 3.09. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Custodian may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Custodian shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Custodian, shall be the successor of the Custodian hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 3.10. No Obligations of Custodian.
Except to the extent otherwise provided for in this Agreement, the
Custodian assumes no obligations and shall not be subject to any liability under
this Agreement or any Unit in respect of the obligations of the Company or the
Agent.
Section 3.11. Tax Compliance.
(a) The Custodian, on its own behalf and on behalf of the Agent,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by applicable
tax laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Treasury Strips or (ii) the delivery, holding,
transfer or withdrawal of the Treasury Strips. Such compliance shall include,
without limitation, the timely payment of all amounts required to be withheld to
the appropriate taxing authority or its designated agent.
(b) The Custodian shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Agent or to its authorized representative and to any Holder or to
any Holder's authorized representative.
ARTICLE FOUR
The Agent
Section 4.01. Agent's Direct Liability.
The disclosure by the Agent to the Custodian that the Agent has
entered into this Agreement as the agent or representative of another person
shall not relieve the Agent of any of its obligations under this Agreement.
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Section 4.02. Force Majeure.
The Agent will not be responsible for any failure to perform any of
its obligations if such performance is prevented, hindered or delayed by a Force
Majeure Event, in such case its obligations will be suspended for so long as the
Force Majeure Event continues.
ARTICLE FIVE
Supplemental Agreements
Section 5.01. Supplemental Agreements without Consent of Holders.
Without the consent of any Holders, the Agent and the Custodian, at
any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Agent and the Custodian, for
any of the following purposes:
(1) to evidence the succession of another Person to the Agent; or
(2) to evidence and provide for the acceptance of appointment
hereunder by a successor Custodian, and the assumption by any such
successor of the covenants of the Custodian hereunder; or
(3) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions
arising under this Agreement, but only to the extent such action does not
affect rights or obligations of the Holders or of the Agent in relation to
the Holders.
Section 5.02. Supplemental Agreements with Consent of Holders.
Except as set forth in Section 5.01, without the consent of each
Holder affected thereby, the Agent and the Custodian shall not enter into an
agreement or agreements supplemental hereto for the purpose of modifying in any
manner any of the terms of this Agreement.
Section 5.03. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Unit Certificates theretofore or thereafter authenticated, executed on behalf
of the Holders and delivered hereunder shall be bound thereby.
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ARTICLE SIX
Covenants
Section 6.01. Performance Under this Agreement.
The Custodian covenants and agrees for the benefit of the Holders of
Units from time to time that it will duly and punctually perform its obligations
under the terms of this Agreement.
ARTICLE SEVEN
General Conditions
Section 7.01. Entire Agreement.
This Agreement constitutes the entire agreement and understanding of
the parties hereto with respect to the matters set forth herein, and all prior
negotiations, drafts and writings, and understandings relating to the subject
matter of this Agreement, are merged herein and are superseded, nullified and
canceled by this Agreement.
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IN WITNESS WHEREOF, the Agent and the Custodian have caused this
Agreement to be duly executed as of the day and year first above written and all
Holders shall become parties hereto upon acceptance by them of Unit Certificates
issued in accordance with the terms of the Purchase Contract Agreement.
Citibank, N.A., as Custodian
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Computershare Trust Company of Canada,
as Agent
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
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Schedule 1
TREASURY STRIPS
AGGREGATE
PURCHASE TREASURY
MATURITY FACE AMOUNT CUSIP ISSUE DATE COST(1) STRIPS(2)
-------- ----------- ----- ---------- ------- ---------
August 15, 2002........ $ (3) ▇▇▇▇▇▇▇▇▇ 8/17/92 $ 349.19 8,750,000.00
February 15, 2003...... 1,000 ▇▇▇▇▇▇▇▇▇ 2/15/93 989.08 25,000,000.00
August 15, 2003........ 1,000 ▇▇▇▇▇▇▇▇▇ 8/15/93 975.93 25,000,000.00
February 15, 2004...... 1,000 ▇▇▇▇▇▇▇▇▇ 2/15/94 959.04 25,000,000.00
August 15, 2004........ 1,000 ▇▇▇▇▇▇▇▇▇ 8/15/94 939.27 25,000,000.00
February 15, 2005...... 1,000 ▇▇▇▇▇▇▇▇▇ 2/15/95 920.14 25,000,000.00
August 15, 2005........ 1,000 ▇▇▇▇▇▇▇▇▇ 2/15/86 895.82 25,000,000.00
-------------------
(1) Per Treasury Strip, except for Treasury Strips maturing on August 15,
2002.
(2) As of the date of this Agreement.
(3) Pro rata portion of $350 per Unit.