Exhibit 7.1
FORM OF INDENTURE
FOUR SEASONS HOTELS INC.
as Issuer
AND
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
as Trustee
Indenture
Dated as of _______________
CROSS REFERENCE TABLE
TIA Section Indenture Section(s)
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[To Come]
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NOTE: This Cross Reference Table shall not for any purposes be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
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Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
1.01 DEFINITIONS..........................................................1
1.02 COMPLIANCE CERTIFICATES AND OPINIONS................................10
1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..............................10
1.04 ACTS OF HOLDERS.....................................................11
1.05 NOTICES, ETC. TO TRUSTEE AND COMPANY................................12
1.06 NOTICE TO HOLDERS; WAIVER...........................................12
1.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS............................13
1.08 SUCCESSORS AND ASSIGNS..............................................13
1.09 SEPARABILITY CLAUSE.................................................13
1.10 BENEFITS OF INDENTURE...............................................13
1.11 GOVERNING LAW.......................................................14
1.12 LEGAL HOLIDAYS......................................................14
1.13 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES................................................14
1.14 CONVERSION OF CURRENCY..............................................14
1.15 CURRENCY EQUIVALENT.................................................15
1.16 NO RECOURSE AGAINST OTHERS..........................................16
1.17 MULTIPLE ORIGINALS..................................................16
1.18 CONFLICT WITH TRUST INDENTURE ACT...................................16
ARTICLE TWO SECURITY FORMS....................................................16
2.01 FORMS GENERALLY.....................................................16
2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.....................17
2.03 SECURITIES ISSUABLE IN GLOBAL FORM..................................17
ARTICLE THREE THE SECURITIES..................................................18
3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES................................18
3.02 DENOMINATIONS.......................................................21
3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING......................21
3.04 TEMPORARY SECURITIES................................................23
3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.................25
3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES....................28
3.07 PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.............................................29
3.08 OPTIONAL EXTENSION OF STATED MATURITY...............................31
3.09 PERSONS DEEMED OWNERS...............................................32
3.10 CANCELLATION........................................................32
3.11 COMPUTATION OF INTEREST.............................................33
3.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES............33
3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT........36
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................36
4.01 SATISFACTION AND DISCHARGE OF INDENTURE.............................36
4.02 APPLICATION OF TRUST MONEY..........................................37
ARTICLE FIVE DEFAULTS AND REMEDIES............................................38
5.01 EVENTS OF DEFAULT...................................................38
5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..................39
(i)
5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.....41
5.04 TRUSTEE MAY FILE PROOFS OF CLAIM....................................41
5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.........42
5.06 APPLICATION OF MONEY COLLECTED......................................42
5.07 LIMITATION ON SUITS.................................................42
5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST................................................43
5.09 RESTORATION OF RIGHTS AND REMEDIES..................................43
5.10 RIGHTS AND REMEDIES CUMULATIVE......................................43
5.11 DELAY OR OMISSION NOT WAIVER........................................44
5.12 CONTROL BY HOLDERS..................................................44
5.13 WAIVER OF PAST DEFAULTS.............................................44
5.14 WAIVER OF STAY OR EXTENSION LAWS....................................44
5.15 UNDERTAKING FOR COSTS...............................................45
ARTICLE SIX THE TRUSTEE.......................................................45
6.01 NOTICE OF DEFAULTS..................................................45
6.02 CERTAIN RIGHTS OF TRUSTEE...........................................45
6.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......46
6.04 MAY HOLD SECURITIES.................................................46
6.05 MONEY HELD IN TRUST.................................................47
6.06 COMPENSATION AND REIMBURSEMENT......................................47
6.07 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.............................47
6.08 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...................48
6.09 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..............................49
6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.........50
6.11 APPOINTMENT OF AUTHENTICATING AGENT.................................50
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............51
7.01 DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS........................51
7.02 REPORTS BY TRUSTEE..................................................52
7.03 REPORTS BY THE COMPANY..............................................52
7.04 THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......53
ARTICLE EIGHT CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE...............................................53
8.01 COMPANY MAY AMALGAMATE OR CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS...............................................53
8.02 SUCCESSOR PERSON SUBSTITUTED........................................54
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................54
9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..................54
9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.....................55
9.03 EXECUTION OF SUPPLEMENTAL INDENTURES................................56
9.04 EFFECT OF SUPPLEMENTAL INDENTURES...................................56
9.05 CONFORMITY WITH TRUST INDENTURE ACT.................................57
9.06 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..................57
9.07 NOTICE OF SUPPLEMENTAL INDENTURES...................................57
ARTICLE TEN COVENANTS.........................................................57
10.01 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.................57
10.02 MAINTENANCE OF OFFICE OR AGENCY.....................................57
10.03 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...................59
10.04 STATEMENT AS TO COMPLIANCE AND NOTICE OF DEFAULT....................60
(ii)
10.05 ADDITIONAL AMOUNTS..................................................60
10.06 CORPORATE EXISTENCE.................................................61
10.07 WAIVER OF CERTAIN COVENANTS.........................................62
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................62
11.01 APPLICABILITY OF ARTICLE............................................62
11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE...............................62
11.03 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...................62
11.04 NOTICE OF REDEMPTION................................................63
11.05 DEPOSIT OF REDEMPTION PRICE.........................................64
11.06 SECURITIES PAYABLE ON REDEMPTION DATE...............................64
11.07 SECURITIES REDEEMED IN PART.........................................65
11.08 TAX REDEMPTION......................................................65
ARTICLE TWELVE SINKING FUNDS..................................................65
12.01 APPLICABILITY OF ARTICLE............................................65
12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...............66
12.03 REDEMPTION OF SECURITIES FOR SINKING FUND...........................66
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS...............................67
13.01 APPLICABILITY OF ARTICLE............................................67
13.02 REPAYMENT OF SECURITIES.............................................67
13.03 EXERCISE OF OPTION..................................................67
13.04 WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE..............................................68
13.05 SECURITIES REPAID IN PART...........................................68
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE...........................69
14.01 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE..................69
14.02 DEFEASANCE AND DISCHARGE............................................69
14.03 COVENANT DEFEASANCE.................................................69
14.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.....................70
14.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS......................................71
14.06 REINSTATEMENT.......................................................72
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES.............................73
15.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED...........................73
15.02 CALL, NOTICE AND PLACE OF MEETINGS..................................73
15.03 PERSONS ENTITLED TO VOTE AT MEETINGS................................73
15.04 QUORUM; ACTION......................................................73
15.05 DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.................................74
15.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.....................75
(iii)
INDENTURE, dated as of , between FOUR SEASONS HOTELS INC., a
corporation duly organized and existing under the laws of the Province of
Ontario (herein called the "Company"), having its principal office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and THE BANK OF NOVA SCOTIA
TRUST COMPANY OF NEW YORK, a New York corporation, as trustee (herein called the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), which may be convertible into or exchangeable for any securities
of any Person (including the Company), to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid and binding
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles primarily used in the Company's annual financial
statements contained in the Company's annual report delivered
to its shareholders in respect of the fiscal year immediately
prior to the date of such computation; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04(1).
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"Additional Amounts" has the meaning specified in Section 10.05.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person appointed by the Trustee to act on
behalf of the Trustee pursuant to Section 6.11 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 5.01.
"Bankruptcy Order" has the meaning specified in Section 5.01.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means the board of directors of the Company, or any duly
authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
3.01, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"calculation period" has the meaning specified in Section 3.11.
"Canadian Taxes" has the meaning specified in Section 10.05.
"Clearstream" means Clearstream Banking, societe anonyme, or its successor.
"Commission" means the U.S. Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04.
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"Company" means Four Seasons Hotels Inc. until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed in
the name of the Company by the Chief Executive Officer, any President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.12(8).
"Consolidated Net Tangible Assets" means the total amount of assets (including
investments in Joint Ventures) of the Company and its Subsidiaries (less
applicable depreciation, amortization and other valuation reserves) after
deducting therefrom (a) all current liabilities of the Company and its
Subsidiaries (excluding (i) the current portion of long-term indebtedness, (ii)
intercompany liabilities and (iii) any liabilities which are by their terms
renewable or extendible at the option of the obligor to a time more than 12
months from the time at which the amount thereof is being computed) and (b) all
goodwill, trade-names, trademarks, patents, unamortized debt discount and other
like intangibles, all as set forth on the most recent consolidated balance sheet
of the Company and computed in accordance with the generally accepted accounting
principles used in the preparation of the Company's most recent annual financial
statements that include such consolidated balance sheet.
"Conversion Date" has the meaning specified in Section 3.12(4).
"Conversion Event" means the cessation of use of (i) a Foreign Currency (other
than the Euro or other currency unit) both by the government of the country that
issued such Currency and by a central bank or other public institution of or
within the international banking community for the settlement of transactions,
(ii) the Euro or (iii) any currency unit (or composite currency) other than the
Euro for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, at which at any
particular time its corporate trust business is administered, which office on
the date of execution of this Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" includes corporations, associations, companies and business
trusts.
"covenant defeasance" has the meaning specified in Section 14.03.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency unit
or currency units, including, without limitation, the Euro, issued by the
government of one or more countries or by any recognized confederation or
association of such governments.
"Custodian" has the meaning specified in Section 5.01.
"Default" means any event that is, or after notice or passage of time or both
would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07(1).
"defeasance" has the meaning specified in Section 14.02.
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"Depositary" means, with respect to the Securities of any series, The Depository
Trust Company, or any successor thereto, or any other Person designated pursuant
to Section 3.01 to act as depositary with respect to the Securities of such
series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency
of the United States of America as at the time shall be legal tender for the
payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in Section
3.12(7).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in Section
3.12(6).
"Election Date" has the meaning specified in Section 3.12(8).
"Euro" means the single currency of the participating member states from time to
time of the European Union described in legislation of the European Council for
the operation of a single unified European currency (whether known as the Euro
or otherwise).
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear System, or
any successor securities clearing agency.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04.
"Exchange Rate Agent" means, with respect to Securities of or within any series,
unless otherwise specified with respect to any Securities pursuant to Section
3.01, a New York Clearing House bank, designated pursuant to Section 3.01 or
Section 3.13.
"Exchange Rate Officer's Certificate" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 3.02 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"Excluded Holder" has the meaning specified in Section 10.05.
"Extension Notice" has the meaning specified in Section 3.08.
"Extension Period" has the meaning specified in Section 3.08.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of 1978 as amended and
as codified in Title 11 of the United States Code, as amended from time to time
or any successor federal bankruptcy law.
"Final Maturity" has the meaning specified in Section 3.08.
"First Currency" has the meaning specified in Section 1.15.
"Foreign Currency" means any Currency other than Currency of the United States
of America.
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"Governmental Authority" means any nation or government, any state, province,
territory or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Government Obligations" means, unless otherwise specified with respect to any
series of Securities pursuant to Section 3.01, securities which are (a) direct
obligations of the government that issued the currency in which the Securities
of a particular series are payable, or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the government that
issued the currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of a holder of a depositary receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"Guarantee" means any guarantee, indemnity or similar obligation.
"Holder" means, in the case of a Registered Security, the Person in whose name a
Security is registered in the Security Register and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.
"Indebtedness" means obligations for money borrowed whether or not evidenced by
notes, bonds, debentures or other similar evidences of indebtedness.
"Indenture" means this instrument as originally executed and as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof, and shall include the
provisions of the TIA that are deemed to be part of and govern this instrument
and the other terms of particular series of Securities established as
contemplated by Section 3.01; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms
that relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount Security, shall
be deemed to mean interest payable after Maturity at the rate prescribed in such
Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
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"Joint Venture" means any partnership, corporation or other entity in which up
to and including 50% of the partnership interests, outstanding voting stock or
other equity interest is owned, directly or indirectly, by the Company and/or
one or more of its Subsidiaries.
"Judgment Currency" has the meaning specified in Section 1.14(1).
"mandatory sinking fund payment" has the meaning specified in Section 12.01.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that upon
which a non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such Securities.
"Maturity", when used with respect to any Security, means the date on which the
principal of such Security or an instalment of principal becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Non-Recourse Indebtedness" means Indebtedness the terms of which provide that
the lender's claim for repayment of such Indebtedness is limited solely to a
claim against the property that secures such Indebtedness.
"Officer's Certificate" means a certificate signed by the Chief Executive
Officer, any President or Vice President, the Treasurer, or Secretary of the
Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for
the Company, including an employee of the Company, and who shall be reasonably
acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section 3.07(2).
"optional sinking fund payment" has the meaning specified in Section 12.01.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
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"Original Stated Maturity" has the meaning specified in Section 3.08.
"Other Currency" has the meaning specified in Section 1.15.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 14.02
and 14.03, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; and
(iv) Securities that have been paid for pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 3.13, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.01, and (iv) Securities owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that the
Trustee knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
certifies to the Trustee the pledgee's right to act with respect to such
Securities and that the pledgee is not the Company or any Affiliate of the
Company.
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"Paying Agent" means any Person (including the Company acting as Paying Agent)
authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Person" means an individual, partnership, corporation, limited liability
company, unlimited liability company, business trust, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Place of Payment" means, when used with respect to the Securities of or within
any series, the place or places where the principal of (and premium, if any) and
interest, if any, on such Securities are payable as specified as contemplated by
Sections 3.01 and 10.02.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and any Security authenticated and delivered under Section
3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"rate(s) of exchange" has the meaning specified in Section 1.14.
"Redemption Date", when used with respect to any Security to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on
the Registered Securities of or within any series means the date specified for
that purpose as contemplated by Section 3.01.
"Repayment Date" means, when used with respect to any Security to be repaid at
the option of the Holder, the date fixed for such repayment pursuant to this
Indenture.
"Required Currency" has the meaning specified in Section 1.14(1).
"Reset Notice" has the meaning specified in Section 3.07(2).
"Responsible Officer", when used with respect to the Trustee, means the chairman
or any vice-chairman of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this
Indenture; provided, however, that if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall
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more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Significant Subsidiary" has the meaning set forth in Rule 1.02(w) of Regulation
S-X promulgated by the United States Securities and Exchange Commission.
"Specified Amount" has the meaning specified in Section 3.12(8).
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any instalment of
principal thereof or interest thereon, means the date specified in such Security
or a coupon representing such instalment of interest as the fixed date on which
the principal of such Security or such instalment of principal or interest is
due and payable, as such date may be extended pursuant to the provisions of
Section 3.08.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by its terms ordinary voting power to elect a majority
of the directors of the corporation is, at the time, directly or indirectly,
owned by the Company or by one or more of the Company's Subsidiaries or by the
Company and one or more of the Company's Subsidiaries.
"Subsequent Interest Period" has the meaning specified in Section 3.07(2).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this Indenture was executed except as
provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, the United States of America (including the states and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"Valuation Date" has the meaning specified in Section 3.12(3).
"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" means securities or other ownership interests of a corporation,
partnership or other entity having by the terms thereof ordinary voting power to
vote in the election of the board of directors or other Persons performing
similar functions of such corporation, partnership or other entity (without
regard to the occurrence of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
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1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with in accordance with this Indenture and, except in respect of
the initial issue of Securities hereunder, an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to Section
10.04) shall include:
(a) a statement that the person signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as he believes is necessary
to enable him to make the statements or give the opinions
contained or expressed therein; and
(d) a statement as to whether, in the opinion of such person, such
covenant or condition has been complied with.
1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel
may be based, insofar as it relates to accounting matters, upon a certificate or
opinion of, or representations by, the independent firm of public accountants
employed by the Company to conduct the audit of the Company's financial
statements, unless such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which such
certificate or opinion may be based are erroneous. Any certificate or opinion of
any
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independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
1.04 ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders of the
Outstanding Securities of all series or one or more series, as the case may be,
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
Securities of any series may, alternatively, be embodied in and evidenced by the
record of Holders of Outstanding Securities of such series voting in favour
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favour of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 15.06.
(2) The fact and date of the execution by any Person of any such instrument or
writing may be proved in any reasonable manner that the Trustee deems
sufficient.
(3) The principal amount and serial numbers of Registered Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(4) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(5) If the Company shall solicit from the Holders of Registered Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall
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be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
1.05 NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing or sent by facsimile to the
Trustee at its Corporate Trust Office, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Office, (212)
o; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, or sent by overnight courier to
the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the
Trustee by the Company.
1.06 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his or her address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be directed by the Company shall be deemed
to be sufficient giving of such notice for every purpose hereunder.
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Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice and the second such
publication to be at any time thereafter not later than the latest date, if any,
prescribed for the giving of such second notice. Any such notice shall be deemed
to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
as directed by the Company shall constitute sufficient notice to such Holders
for every purpose hereunder. Neither the failure to give notice by publication
to Holders of Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver or other Act required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
1.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
1.08 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Trustee shall bind its successors and assigns, whether so expressed or not.
1.09 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
1.10 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
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1.11 GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York.
1.12 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series that specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
1.13 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has irrevocably designated and appointed CT Corporation
System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to the Securities or this Indenture that may be instituted in any
United States federal or New York state court in the Borough of Manhattan, The
City of New York or brought under federal or state securities laws or brought by
the Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding, and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company (mailed or
delivered to its Secretary at its principal office specified in the first
paragraph of this Indenture and in the manner specified in Section 1.05 hereof),
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as any of the Securities
shall be Outstanding.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to
laying of venue of any such action, suit or proceeding in any such court or any
appellate court with respect thereto and irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of any such action, suit or proceeding in any such court.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
1.14 CONVERSION OF CURRENCY.
(1) The Company covenants and agrees that the following provisions
and the provisions of Section 1.14(2) shall apply to
conversion of Currency in the case of the Securities and this
Indenture to the fullest extent permitted by applicable law:
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(a) If for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to
convert into any other Currency (the "Judgment Currency") an
amount due or contingently due under the Securities of any
series and this Indenture (the "Required Currency"), then the
conversion shall be made at the rate of exchange prevailing on
the Business Day before the day on which the judgment is given
or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(b) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment
is given or an order of enforcement is made, as the case may
be (or such other date as a court shall determine), and the
date of receipt of the amount due, the Company shall pay such
additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the
Judgment Currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in
the Required Currency originally due.
(2) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Securities and
this Indenture, or any judgment or order rendered in respect
thereof, shall remain outstanding, the Company shall indemnify
and hold the Holders of Securities and the Trustee harmless
against any deficiency arising or resulting from any variation
in rates of exchange between (i) the date as of which the
equivalent of the amount in the Required Currency (other than
under this Subsection) is calculated for the purposes of such
winding-up and (ii) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this Subsection,
the final date for the filing of proofs of claim in the
winding-up of the Company shall be the date fixed by the
liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable
date as at which liabilities of the Company may be ascertained
for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
The obligations contained in Subsections 1.14(1)(b) and 1.14(2) of this
Section shall constitute separate and independent obligations of the Company
from its other obligations under the Securities and this Indenture, shall give
rise to separate and independent causes of action against the Company, shall
apply irrespective of any waiver or extension granted by any Holder or Trustee
from time to time and shall continue in full force and effect notwithstanding
any judgment or order or the filing of any proof of claim in the winding-up of
the Company for a liquidated sum in respect of amounts due hereunder (other than
under Subsection (b) above) or under any such judgment or order. Any such
deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustee, as the case may be, and no proof or evidence of any
actual loss shall be required by the Company or the applicable liquidator. In
the case of Subsection (b) above, the amount of such deficiency shall not be
deemed to be reduced by any variation in rates of exchange occurring between the
said final date and the date of any liquidating distribution.
The term "rate(s) of exchange" shall mean the Bank of Canada noon rate
for purchases on the relevant date of the Required Currency with the Judgment
Currency, as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) and includes any premiums and costs of exchange
payable.
1.15 CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "First
Currency"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "Other Currency") that
is required to purchase such
-16-
amount in the First Currency at the Bank of Canada noon rate as reported by
Telerate on screen 3194 (or such other means of reporting the Bank of Canada
noon rate as may be agreed upon by each of the parties to this Indenture) on the
date of determination.
1.16 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, shareholder or representative or agent,
as such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. Such waiver
and release shall be part of the consideration for the issue of the Securities.
1.17 MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
1.18 CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision hereof limits, qualifies or
conflicts with another provision that is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Indenture modifies, limits,
qualifies or excludes any provision of the Trust Indenture Act that may be so
modified, limited, qualified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified, limited, qualified or excluded, as
the case may be.
ARTICLE TWO
SECURITY FORMS
2.01 FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Company. If the forms of Securities
or coupons of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.03 for the authentication and delivery of such Securities or coupons. Any
portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 3.01, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
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The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities or coupons.
2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
-----------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By
---------------------
Authorized Officer
2.03 SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.01, then, notwithstanding clause (h) of
Section 3.01 and Section 3.02, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or Section
3.04 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or the Trustee shall treat as the
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Holder of such principal amount of Outstanding Securities represented by a
permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or Clearstream, as their interests may appear.
ARTICLE THREE
THE SECURITIES
3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Except as otherwise
provided herein, and except to the extent prescribed by law each series of
Securities shall be direct, unconditional and unsecured obligations of the
Company and shall rank pari passu and ratably without preference among
themselves and pari passu with all other unsecured and unsubordinated
obligations of the Company. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions,
subject to Section 3.03, set forth in, or determined in the manner provided in,
an Officer's Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses 3.01 (a), (b) and (q) below), if so provided, may be determined from
time to time by the Company with respect to unissued Securities of the series
and set forth in such Securities of the series when issued from time to time):
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series
of Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or
13.05);
(c) the date or dates, or method for the determination of the date
or dates, on which the principal of, and any premium on, the
debt securities will be payable and the portion (if less than
the principal amount) to be payable upon a declaration of
acceleration of maturity;
(d) the rate or rates (whether fixed or variable) at which the
Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the
date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest shall be payable
and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or
the method by which such date or dates shall be determined,
and the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(e) the place or places, if any, other than or in addition to
the Corporate Trust Office, where the principal of (and
premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of
the series may be surrendered for registration of transfer,
where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible
or exchangeable may be surrendered for conversion or exchange,
as applicable, and, if different than the location specified
in
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Section 1.05, the place or places where notices or demands to
or upon the Company in respect of the Securities of the series
and this Indenture may be served and the extent to which, or
the manner in which, any interest payment or Additional
Amounts on a global Security on an Interest Payment Date will
be paid;
(f) the period or periods within which, the price or prices at
which, the Currency in which, and the terms and conditions
upon which Securities of the series may or must be redeemed,
repaid or purchased, in whole or in part, at the option of the
Company, if the Company is to have that option;
(g) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof,
and the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such
obligation;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable and,
if other than denominations of $1,000, the denomination or
denominations in which any Bearer Securities of the series
shall be issuable;
(i) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or the method by which such
portion shall be determined;
(k) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the
particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section
3.12;
(l) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may
be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such
amounts shall be determined;
(m) whether the principal of (or premium, if any) or interest,
if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency
other than that in which such Securities are denominated or
stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which
such Securities are denominated or stated to be payable and
the Currency in which such Securities are to be so payable, in
each case in accordance with, in addition to or in lieu of any
of the provisions of Section 3.12;
(n) the designation of the initial Exchange Rate Agent, if any;
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(o) the applicability, if any, of Sections 14.02 and/or 14.03 to
the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen that shall be applicable to the
Securities of the series;
(p) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as
may be specified;
(q) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to Section 10.07) of the Company
with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events
of Default or covenants set forth herein;
(r) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities, whether any Securities
of the series are to be issuable initially in temporary global
form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided
in Section 3.05, whether Registered Securities of the series
may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations), whether Bearer
Securities of the series may be exchanged for Registered
Securities of such series, and the circumstances under which
and the place or places where any such exchanges may be made
and if Securities of the series are to be issuable in global
form, the identity of any initial depositary therefor if other
than The Depository Trust Company;
(s) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date
of original issuance of the first Security of the series to be
issued;
(t) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on
an Interest Payment Date will be paid if other than in the
manner provided in Section 3.04;
(u) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, the form and/or terms of such certificates,
documents or conditions;
(v) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(w) the date referred to in Section 11.08 that shall be applicable
with respect to the Securities of such series and any
deletions from, modifications of or additions to Sections
10.05 or 11.08 with respect to the Securities of such series,
or a statement to the effect that either
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or both of Sections 10.05 or 11.08 shall not be applicable
with respect to the Securities of such series;
(x) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities
will be so convertible or exchangeable; and
(y) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture), including covenants and events of default
that apply only to a particular series of the Securities that
do not apply generally to other Securities or to a particular
series of Securities.
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 3.03) and
set forth in such Officer's Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
3.02 DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 3.01. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $1,000.
3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chief Executive Officer, any President or Vice
President together with any one of the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer of the Company[, under its corporate seal
reproduced thereon attested by its Secretary or an Assistant Secretary]. The
signature of any of these officers on the Securities or coupons may be the
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States or Canada; and provided further that, unless
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otherwise specified with respect to any series of Securities pursuant to Section
3.01, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A-1 to this Indenture,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 3.04, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection with its original
issuance of such beneficial owner's interest in such permanent global Security.
Except as permitted by Section 3.06, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the Securities of any
series are to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Securities
and determining terms of particular Securities of such series such as interest
rate, stated maturity, date of issuance and date from which interest shall
accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion or Opinions
of Counsel of the Company stating:
(a) that the form or forms of such Securities and any coupons have
been established by or pursuant to Board Resolution as
permitted by Section 2.01, in conformity with the provisions
of this Indenture;
(b) that the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by
Section 3.01, in conformity with the provisions of this
Indenture;
(c) that such Securities, together with any coupons
appertaining thereto when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights,
to general equitable principles and to such other
qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and
any coupons;
(d) that all laws and requirements applicable to the Company in
respect of the execution and delivery by the Company of such
Securities, any coupons and of the supplemental indentures, if
any, have been complied with and that authentication and
delivery of such Securities and any coupons and the execution
and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the
Company.
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Notwithstanding the provisions of Section 3.01 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
adversely affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.01.
No Security or coupon endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 3.10 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
3.04 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company may determine,
as conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and evidencing the same indebtedness;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 3.03. Until
so
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exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London, England office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and Clearstream, for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security and evidencing the same indebtedness,
executed by the Company. On or after the Exchange Date, such temporary global
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor and evidencing the
same indebtedness as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Clearstream as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 3.01); and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 3.03.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor and evidencing the same indebtedness following the Exchange Date when
the account holder instructs Euroclear or Clearstream, as the case may be, to
request such exchange on his or her behalf and delivers to Euroclear or
Clearstream, as the case may be, a certificate in the form set forth in Exhibit
A-1 to this Indenture (or in such other form as may be established pursuant to
Section 3.01), dated no earlier than 15 days prior to the Exchange Date, copies
of which certificate shall be available from the offices of Euroclear and
Clearstream, the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or
Clearstream. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only outside
the United States and Canada.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor and evidencing the same indebtedness authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
3.01, interest payable on a temporary global
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Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 3.01), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or Clearstream,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.01). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 3.03 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor and evidencing the
same indebtedness on the Exchange Date or the date of certification if such date
occurs after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of principal
(or premium, if any) or interest, if any, owing with respect to a beneficial
interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
Clearstream and not paid as herein provided shall be returned to the Trustee no
later than one month prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
10.03.
3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities issued by the Company (the
registers maintained in the Corporate Trust Office of the Trustee and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Security Registrar") for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided. The Company shall have
the right to remove and replace from time to time the Security Registrar for any
series of Securities; provided, however, that no such removal or replacement
shall be effective until a successor Security Registrar with respect to such
series of Registered Securities shall have been appointed by the Company and
shall have accepted such appointment by the Company. In the event that the
Trustee shall not be or shall cease to be the Security Registrar with respect to
a series of Securities, it shall have the right to examine the Security Register
for such series at all reasonable times. There shall be only one Security
Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more replacement Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor and evidencing the same indebtedness.
At the option of the Holder, Registered Securities of any series may be
exchanged for other replacement Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount and tenor and
evidencing the same indebtedness, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are
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so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 3.01, Bearer Securities may not
be issued in exchange for replacement Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 3.03) set forth in the applicable
Officer's Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 3.01, at the option of the Holder, Bearer Securities of
any series may be exchanged for replacement Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made with respect to the other Securities of the
same series, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 10.02,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any permanent global Security shall be
exchangeable only as provided in this paragraph and the two following
paragraphs. If any beneficial owner of an interest in a permanent global
Security is entitled to exchange such interest for Securities of such series and
of like tenor and principal amount of another authorized form and denomination,
as specified as contemplated by Section 3.01 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on
which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of
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authorized denominations and of like tenor and evidencing the same indebtedness
as the portion of such permanent global Security to be exchanged which, unless
the Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 3.01, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and provided, further,
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States or Canada. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary for Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for Securities
of such series or if at any time the Depositary for global Securities for such
series shall no longer be registered under the Securities Exchange Act of 1934,
as amended, or other applicable statute or regulation, the Company shall appoint
a successor depositary with respect to the Securities for such series. If a
successor to the Depositary for Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, the Company's election pursuant to Section 3.01
shall no longer be effective with respect to the Securities for such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver replacement Securities of such series in definitive
registered form, in such authorized denominations and registered in such names
as the Depositary shall direct, and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series and evidencing the same indebtedness in exchange for such global Security
or Securities to the beneficial owners. The provisions of the last sentence of
the immediately preceding paragraph shall be applicable to any exchange pursuant
to this paragraph.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver replacement Securities of such series in
definitive registered form, in such authorized denominations and registered in
such names as the Company shall direct, and in an aggregate principal amount
equal to the principal amount of the global Security or Securities representing
such series and evidencing the same indebtedness in exchange for such global
Security or Securities to the beneficial owners. The provisions of the last
sentence of the second preceding paragraph shall be applicable to any exchange
pursuant to this paragraph.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his or her attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any transfer tax or other similar governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06, 11.07 and
13.05, not involving any transfer.
Notwithstanding anything else herein, the Company shall not be required
(i) to issue, register the transfer of or exchange Securities of, any series
during a period beginning at the opening of business 15 days before the day of
the selection for redemption of Securities of that series under Section 11.03 or
12.03 and ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption or (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security that has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a replacement
Security of the same series and of like tenor and principal amount and
evidencing the same indebtedness and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon a Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a replacement Security of the same series and of like tenor and
principal amount and evidencing the same indebtedness and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a replacement Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to
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which such mutilated, destroyed, lost or stolen coupon appertains, pay such
Security or coupon; provided, however, that payment of principal of (and
premium, if any) and interest, if any, on Bearer Securities shall, except as
otherwise provided in Section 10.02, be payable only at an office or agency
located outside the United States and Canada and, unless otherwise specified as
contemplated by Section 3.01, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any replacement Security under this Section, the
Company may require the payment of a sum sufficient to cover any transfer tax or
other similar governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every replacement Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen coupon appertains, shall constitute a contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen Security and
its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
Section 3.01 of this Indenture with respect to particular Securities or
generally, are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
3.07 PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(1) Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest, if any, on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each instalment of the principal of, and premium, if any and
interest, if any, on any Registered Security may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 3.09, to the address of such
Person as it appears on the Security Register or (ii) wire transfer to an
account located in the United States maintained by the payee of a Holder of
$1,000,000 or more in aggregate principal amount of the Securities of such
series (with wire transfer instructions provided to the Trustee not less than 15
days prior to payment of interest by wire transfer). Principal paid in relation
to any Security at Maturity shall be paid to the Holder of such Security only
upon presentation and surrender of such Security to any office or agency
referred to in this Section 3.07(1).
Unless otherwise provided as contemplated by Section 3.01 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States and Canada maintained by the payee, upon presentation and
surrender of the coupons appertaining thereto.
If so provided pursuant to Section 3.01 with respect to the Securities
of any series, every permanent global Security of such series will provide that
interest, if any, payable on any Interest Payment Date will be paid to each of
Euroclear and Clearstream with respect to that portion of such permanent global
Security held for its account by the Common Depositary, for the purpose of
permitting each of Euroclear and Clearstream to credit the interest, if any,
received by it in respect of such permanent global Security to the accounts of
the beneficial owners thereof.
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Any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such Defaulted Interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
shall be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment,
and at the same time, the Company shall deposit with the
Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections
3.12(2), 3.12(4) and 3.12(5)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest, which
shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in Section 1.06, not less than 10
days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose name the Registered Securities
of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(2) The provisions of this Section 3.07(2) may be made applicable
to any series of Securities pursuant to Section 3.01 (with
such modifications, additions or substitutions as may be
specified pursuant to such Section 3.01). The interest rate
(or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified on
the face of such Security (each an "Optional Reset Date"). The
Company may exercise such option with respect to such Security
by notifying the Trustee of such exercise at least 50 but not
more than 65 days prior to an Optional Reset Date for such
Security, which notice shall specify the information to be
included in the Reset Notice (as defined). Not later than 40
days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 1.06, to the
Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the
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interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any,
for redemption during the period from such Optional Reset Date
to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such
Security (each such period a "Subsequent Interest Period"),
including the date or dates on which, or the period or periods
during which, and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 1.06, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment
by the Company of the principal of such Security on each Optional Reset Date at
a price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender for repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 3.05,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
3.08 OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 3.08 may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 45 but not more than 90 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
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Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 1.06 notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
3.09 PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of either of the foregoing may
treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for all purposes, including the purpose of
receiving payment of principal of (and premium, if any) and (subject to Sections
3.05 and 3.07) interest, if any, on such Security and for all other purposes
whatsoever (other than the payment of Additional Amounts, if any), whether or
not such Security be overdue, and none of the Company, the Trustee nor any agent
of either of the foregoing shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of either of the
foregoing may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for all purposes,
including the purpose of receiving payment thereof or on account thereof and for
all other purposes whatsoever, whether or not such Security or coupons be
overdue, and none of the Company, the Trustee or any agent of any of the
foregoing shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of any of
the foregoing from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
3.10 CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
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hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder, which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
3.11 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months. For
the purposes of disclosure under the Interest Act (Canada), the yearly rate of
interest to which interest calculated under a Security for any period in any
calendar year (the "calculation period") is equivalent, is the rate payable
under a Security in respect of the calculation period multiplied by a fraction
the numerator of which is the actual number of days in such calendar year and
the denominator of which is the actual number of days in the calculation period.
3.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(1) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (2) below or the Holders of which have
not made the election provided for in paragraph (2) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (4) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(2) It may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (4) and (5) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies that may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 3.01, not later than the close of business on
the Election Date immediately preceding the applicable payment date. If a Holder
so elects to receive such payments in any such Currency, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Article Fourteen or with
respect to which a notice of redemption has been given by the Company or a
notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 3.12(1). The
Trustee shall notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
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(3) Unless otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (2) above has been provided for pursuant to Section
3.01, then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (2) above. If the election referred to
in paragraph (2) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (2) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(4) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (2) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the currency unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraphs (6) or (7) below.
(5) Unless otherwise specified pursuant to Section 3.01, if the Holder
of a Registered Security denominated in any Currency shall have elected to be
paid in another Currency as provided in paragraph (2) above, and a Conversion
Event occurs with respect to such elected Currency, such Holder shall receive
payment in the Currency in which payment would have been made in the absence of
such election; and if a Conversion Event occurs with respect to the Currency in
which payment would have been made in the absence of such election, such Holder
shall receive payment in Dollars as provided in paragraph (4) above.
(6) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Exchange Rate Agent and shall be obtained for each subsequent payment
date by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Conversion Date.
(7) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent and subject to the provisions of paragraph (8) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(8) For purposes of this Section 3.12 the following terms shall
have the following meanings:
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A "Component Currency" shall mean any Currency that, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the Euro.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions
thereof that were represented in the relevant currency unit,
including, but not limited to, the Euro, on the Conversion
Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount
shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided
into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value
at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent value of the Specified Amount
of such former Component Currency at the Market Exchange Rate
immediately before such division and such amounts shall
thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited
to, the Euro, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in
effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (m) of
Section 3.01 by which the written election referred to in
paragraph (2) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately thereafter give written notice thereof to the Trustee and to
the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in
the manner provided for in Section 1.06 to the affected Holders) specifying the
Conversion Date. In the event the Company so determines that a Conversion Event
has occurred with respect to the Euro or any other currency unit in which
Securities are denominated or payable, the Company will immediately give written
notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee
will promptly thereafter give notice in the manner provided for in Section 1.06
to the affected Holders) specifying the Conversion Date and the Specified Amount
of each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
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set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(1) Unless otherwise specified pursuant to Section 3.01, if and so long
as the Securities of any series (i) are denominated in a Currency other than
Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.01 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 3.12.
(2) The Company shall have the right to remove and replace from time to
time the Exchange Rate Agent for any series of Securities. No resignation of the
Exchange Rate Agent and no appointment of a successor Exchange Rate Agent
pursuant to this Section shall become effective until the acceptance of
appointment by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee.
(3) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities issued by the Company specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when:
(a) either:
(i) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been
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waived as provided in Section 3.05, (ii) Securities
and coupons of such series that have been destroyed,
lost or stolen and that have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining
to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.06, and
(iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust
with the Trustee or any Paying Agent or segregated
and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 10.03)
have been delivered to the Trustee for cancellation;
or
(ii) all Securities of such series and, in the case
of (A) or (B) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (A), (B) or (C)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust
for such purpose an amount in the Currency in which
the Securities of such series are payable, sufficient
to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any)
and interest, if any, to the date of such deposit (in
the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.06, the obligations of
the Trustee to any Authenticating Agent under Section 6.11 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
4.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
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ARTICLE FIVE
DEFAULTS AND REMEDIES
5.01 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such series pursuant to Section 3.01 of this Indenture:
(a) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(b) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a
period of 30 days; or
(c) default in the deposit of any sinking fund payment when the
same becomes due by the terms of the Securities of that
series; or
(d) the Company or any Significant Subsidiary, pursuant to or
under or within the meaning of any Bankruptcy Law:
(i) commences a proceeding or makes an application seeking a
Bankruptcy Order;
(ii) consents to the making of a Bankruptcy Order or the
commencement of any proceeding or application seeking the
making of a Bankruptcy Order against it;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors or files a proposal or notice of intention to
make a proposal or other scheme of arrangement involving
the rescheduling, reorganizing or compromise of its
indebtedness;
(v) files an assignment in bankruptcy; or
(vi) consents to the filing of an assignment in bankruptcy or
the appointment of or taking possession by a Custodian;
(e) a court of competent jurisdiction makes a Bankruptcy Order
against the Company or any Significant Subsidiary and such
Bankruptcy Order remains unstayed and in effect for 90
consecutive days; or
(f) a Custodian shall be appointed out of court with respect to
the Company or any Significant Subsidiary, or with respect to
all or any substantial part of the property of the Company or
any Significant Subsidiary and such appointment shall not have
been vacated, discharged, or stayed or bonded pending appeal
within 90 days, or any encumbrancer shall take possession of
all or any substantial part of the property of the Company or
any Significant Subsidiary and such possession shall not have
reverted to the Company within 90 days; or
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(g) the acceleration of the maturity of any indebtedness of the
Company (other than Non-Recourse Indebtedness), at any one
time, in an amount in excess of the greater of (i)
US$25,000,000 and (ii) 5% of Consolidated Net Tangible Assets,
unless that acceleration is rescinded or annulled within 30
days after written notice to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities at the time
outstanding; or
(h) if the Company shall neglect to carry out or observe any
covenant or condition contained in the Securities or in this
Indenture on its part to be observed or performed (other than
those referred to in clauses (a) through (c) above) upon
receipt of notice in writing to the Company of such default
from the Trustee or to the Company and the Trustee from
holders of not less than 25% in aggregate principal amount of
outstanding Securities of that series and the Company fails to
cure (or obtain a waiver of) such default within 60 days after
receipt of such notice by the Company; or
(i) any other Event of Default provided with respect to Securities
of that series.
"Bankruptcy Law" means the Federal Bankruptcy Code, Bankruptcy and
Insolvency Act (Canada), Companies' Creditors Arrangement Act (Canada),
Winding-Up & Restructuring Act (Canada), or any other Canadian federal or
provincial law or the law of any other jurisdiction relating to bankruptcy,
insolvency, winding-up, liquidation, dissolution or reorganization for the
benefit of creditors or relief of debtors or any similar law now or hereafter in
effect for the relief from or otherwise affecting creditors.
"Custodian" means any receiver, interim receiver, receiver and manager,
trustee, assignee, liquidator, sequestrator, monitor, custodian or similar
official or agent or any other Person with like powers.
"Bankruptcy Order" means any court order made in a proceeding pursuant
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution
or reorganization, or appointing a Custodian of a debtor or of all or any
substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or compromise of indebtedness or other relief of a
debtor.
5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in clause (a), (b) or (c) of Section
5.01 with respect to Securities of any series at the time Outstanding occurs and
is continuing, then in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of such affected series)
of all of the Outstanding Securities of that series and any accrued but unpaid
interest thereon to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified portion thereof) and any accrued
but unpaid interest thereon shall become immediately due and payable. If an
Event of Default described in clause (h) or (i) of Section 5.01 occurs and is
continuing with respect to the Securities of one or more series, then in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of all series affected thereby (as one class) may
declare the principal amount (or, if any such Securities are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms of such affected series) of all of the
Outstanding Securities of such affected series and any accrued but unpaid
interest thereon to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders) and upon any such
declaration such principal amount (or specified portion thereof) and any accrued
but unpaid interest thereon shall become immediately due and payable. If an
Event of Default described in
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clause (d), (e), (f) or (g) of Section 5.01 occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal
amount of all the Securities then Outstanding (as a class) may declare the
principal amount (or, if any such Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Outstanding Securities and
any accrued but unpaid interest thereon to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal amount (or specified portion
thereof) and any accrued but unpaid interest thereon shall become immediately
due and payable.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.12(2),
3.12(4) and 3.12(5)),
(i) all overdue interest, if any, on all Outstanding Securities
of that series (or of all series, as the case may be) and
any related coupons,
(ii) all unpaid principal of (and premium, if any) on all
Outstanding Securities of that series (or of all series,
as the case may be) that has become due otherwise than by
such declaration of acceleration, and interest on such
unpaid principal at the rate or rates prescribed therefor
in such Securities,
(iii) to the extent lawful, interest on overdue interest, if
any, at the rate or rates prescribed therefor in such
Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any,
on) or interest on Securities of that series (or of all
series, as the case may be) that have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 5.01(g) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30 day period
that has not been cured or waived during such period.
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5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if default is made:
(a) in the payment of any interest on any Security and any related
coupon when such interest or coupon becomes due and payable
and such default continues for a period of 30 days,
(b) in the payment of the principal of (or premium, if any, on)
any Security issued by the Company at the Maturity thereof, or
(c) in the deposit of any sinking fund payment when such payment
becomes due by the terms of any Security,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, and interest on any overdue principal (and premium, if
any) and to the extent lawful on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
5.04 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the property of the Company, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount
of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series,
and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
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(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the rateable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
5.06 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee under Section
6.06;
Second: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and
coupons in respect of which or for the benefit of which such money has
been collected, rateably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, if any, respectively;
and
Third: The balance, if any, to the Company or to such Person or
Persons as the Company directs.
5.07 LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or the Securities, for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such ▇▇▇▇▇▇ has previously given written notice to the Trustee
of a continuing Event of Default with respect to the
Securities of that series affected by such Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of all series affected by such
Event of Default (determined as provided in
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Section 5.02 and as one class), shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority or more in aggregate principal amount of the
Outstanding Securities of all series affected by such Event of
Default (determined as provided in Section 5.02 and as one
class),
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Outstanding Securities of such affected series, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and rateable benefit of all Holders of Outstanding Securities of
such affected series.
5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any) and (subject to Section 3.07) interest, if any, on, such Security or
payment of such coupon on the respective Stated Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date or, in
the case of repayment at the option of the Holder as contemplated by Article
Thirteen hereof, on or after the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
5.09 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
5.12 CONTROL BY HOLDERS.
Subject to Section 5.07 and Article Six, the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series
affected by an Event of Default (determined as provided in Section 5.02 and as
one class) shall have the right to 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 the Trustee, with respect to the Outstanding
Securities of such affected series, provided in each case
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) the Trustee need not take any action that might reasonably be
expected to expose the Trustee to personal liability or be
unduly prejudicial to the Holders of Outstanding Securities of
such affected series not joining therein.
5.13 WAIVER OF PAST DEFAULTS.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series with respect to
which a Default shall have occurred and be continuing (as one class) may on
behalf of the Holders of all the Outstanding Securities of such affected series
waive any past Default, and its consequences, except a Default:
(a) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security or any related
coupon;
(b) in respect of the payment of any sinking fund payment in
respect of any Security; or
(c) in respect of a covenant or provision that under Article Nine
cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such affected series.
Upon any such waiver, any such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
5.14 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or
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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.
5.15 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
its acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security or related coupon on or after
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
6.01 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in the TIA, notice of such Default hereunder
known to the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security or
related coupon of such series or in the payment of any sinking fund instalment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series and any related coupons;
and provided further that in the case of any Default of the character specified
in Section 5.01(h) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
6.02 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may, in the absence of bad faith on its part, 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 Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate;
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) except during a Default the Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the
Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, 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;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of the Trustee
shall be subject to the provisions of this Section.
6.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
6.04 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or
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pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent. A Trustee that has resigned or was removed shall remain subject to
Section 311(a) of the TIA to the extent set forth in such provision.
6.05 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
6.06 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to
time agree in writing, for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(d), 5.01(e) or 5.01(f), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
6.07 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
The Trustee shall comply with the terms of Section 310(b) of the TIA.
There shall be at all times a Trustee hereunder that shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus (together with that of its parent, if applicable) of at least
$50,000,000. If
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such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
6.08 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of
Section 6.09.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.09 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.07 and
shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities or the Securities of such series, or (ii)
subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself or herself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the
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successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself or herself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to the
Holders of Securities of such series in the manner provided for in Section 1.06.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
6.09 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have
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the meanings specified in the provisos to the respective definitions of those
terms in Section 1.01 that contemplate such situation.
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (1) or (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee and
thereafter deliver such Securities. In all such cases such certificates shall
have the full force and effect that this Indenture provides for the certificate
of authentication of the Trustee; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
6.11 APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
(with the prior written consent of the Company) may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities that shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series and the Trustee shall give written notice of such appointment to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 1.06. Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, and a copy of such instrument
shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent
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shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent (with the prior written consent of the Company) and shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.06.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated:
-----------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By
--------------------------
as Authenticating Agent
By
--------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.01 DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was
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derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
7.02 REPORTS BY TRUSTEE.
(1) Within 60 days after o 15 of each year commencing with the first
o 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit a brief report by mail to the Holders of Registered
Securities, in accordance with and to the extent required by Section 313 of the
TIA.
(2) A copy of each such report at the time of its mailing to Holders of
Registered Securities shall be filed with the Commission and each stock
exchange, if any, on which Debt Securities of any series are listed.
(3) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
7.03 REPORTS BY THE COMPANY.
The Company shall:
(a) furnish to the Trustee, within 30 days after the
Company is required to file or furnish the same with
or to the Commission, copies (which may be electronic
copies) of the annual and quarterly reports and of
the information, documents and other reports (or
copies of such portions of any of the foregoing as
the Commission may from time to time by rules and
regulations prescribe) that the Company may be
required to file with or furnish to the Commission
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended;
(b) furnish to the Trustee and file with or furnish to
(as applicable) the Commission, in accordance with
rules and regulations prescribed from time to time by
the Commission, such additional information,
documents and reports with respect to compliance by
the Company with the conditions and covenants of this
Indenture as may be required from time to time by
such rules and regulations;
(c) notwithstanding that the Company may not be required
to remain subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, or otherwise report on an annual
and quarterly basis on forms provided for such annual
and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the
Company shall continue to furnish to the Trustee:
(i) within 140 days after the end of each fiscal year,
the information required to be contained in annual
reports on Form 20F, Form 40F or Form 10K, as
applicable (or any successor form); and
(ii) within 65 days after the end of each of the first
three fiscal quarters of each fiscal year, the
information required to be contained on Form 6K
(or any successor form), which, regardless of
applicable requirements, shall at a minimum
contain the information required to be provided in
quarterly reports under the laws of Canada or any
province thereof to securityholders of a
corporation with securities listed on the Toronto
Stock Exchange, whether or not the Company has any
of its securities listed on such exchange.
Each of such reports will be prepared in accordance with
Canadian or United States disclosure requirements, as required
by the appropriate form or report, and generally
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accepted accounting principles, provided, however, that the
Company shall not be so obligated to file such reports with
the Commission if the Commission does not permit such filings;
and
(d) file with the Commission and the Trustee and transmit to
Holders of Registered Securities such information, documents
and reports, and such summaries thereof, as may be required
pursuant to the TIA.
7.04 THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in
such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in
the Board Resolution, Officer's Certificate or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
8.01 COMPANY MAY AMALGAMATE OR CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not amalgamate or consolidate with or merge or enter
into any statutory arrangement with any other Person or, directly or indirectly,
convey, transfer or lease its consolidated properties and assets as an entirety
or substantially as an entirety to any other Person, unless:
(1) (a) the Company will be the surviving company in any merger,
amalgamation or consolidation; or
(b) the entity formed by or continuing from such consolidation
or amalgamation or into which the Company is merged or with
which the Company enters into such statutory arrangement or
the Person that acquires or leases the Company's
consolidated properties and assets as an entirety or
substantially as an entirety:
(i) shall be a Person organized and validly existing
under the laws of the United States of America, any
state thereof or the District of Columbia or the laws
of Canada or any province or territory thereof;
(ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the
Company's obligation for the due and punctual payment
of the principal of, and premium, if any, and
interest, if any, on all the Securities and any
related coupon
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and the performance and observance of every covenant
of this Indenture on the part of the Company to be
performed or observed; and
(iii) shall submit to the jurisdiction of United States
federal and state courts in accordance with Section
1.13,
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be
continuing; and
(3) the Company or such Person shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that such amalgamation, statutory arrangement,
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
8.02 SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or amalgamation by the Company with or merger by
the Company into any other Person or the statutory arrangement of the Company
with any other Person or any direct or indirect conveyance, transfer or lease of
the consolidated properties and assets of the Company as an entirety or
substantially as an entirety to any other Person in accordance with Section
8.01, the successor Person formed by such consolidation or amalgamation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and such successor Person
shall be subject to all obligations and covenants of the Company under this
Indenture and in the event of any such conveyance or transfer, the Company
(which term shall for this purpose mean the Person named as the "Company" in the
first paragraph of this Indenture or any successor Person that shall theretofore
become such in the manner described in Section 8.01), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
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(c) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being
included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; provided that
any such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect; or
(e) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision;
or
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.09(2); or
(h) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any
ambiguity, to correct or supplement any provision herein that
may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided
such other provisions shall not adversely affect the interests
of the Holders of Securities of any series and any related
coupons in any material respect; or
(i) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant
to Sections 4.01, 14.02 and 14.03; provided that any such
action shall not adversely affect the interests of the Holders
of Securities of such series and any related coupons or any
other series of Securities in any material respect.
9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Securities of any series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holders of
each Outstanding Security of such series,
(a) change the Stated Maturity of the principal of (or premium,
if any) or any instalment of interest on any Security of such
series, or reduce the principal amount thereof (or
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premium, if any) or the rate of interest, if any, thereon, or
change any obligation of the Company to pay Additional Amounts
contemplated by Section 10.05 (except as permitted by Section
9.01(a)), reduce the amount of the principal of an Original
Issue Discount Security of such series that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or the amount thereof
provable in bankruptcy pursuant to Section 5.04, or adversely
affect any right of repayment at the option of any Holder of
any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series
or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the case
may be), or adversely affect any right to convert or exchange
any Security as may be provided pursuant to Section 3.01
herein, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, for any waiver of compliance with certain
provisions of this Indenture that affect such series or
certain defaults applicable to such series hereunder and their
consequences provided for in this Indenture, or reduce the
requirements of Section 15.04 for quorum or voting with
respect to Securities of such series, or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture that
affect such series cannot be modified or waived without the
consent of the Holder of each Outstanding Security of such
series.
Any such supplemental indenture adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture, or modifying
in any manner the rights of the Holders of Securities of such series, shall not
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
9.03 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that prejudices the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
9.04 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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9.05 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
9.06 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series endorsed thereon so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
9.07 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.02, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.06, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
10.01 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 3.01 with respect to any series of Securities, any
interest instalments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest instalments as are evidenced thereby as they severally mature.
10.02 MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable, and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described below (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series that is located
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outside the United States and Canada, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment;
provided, however, that, if the Securities of that series are listed on any
stock exchange located outside the United States and Canada and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United States
and Canada so long as the Securities of that series are listed on such exchange,
and (C) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States and Canada an office
or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible and exchangeable
may be surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or
Canada or by check mailed to any address in the United States or Canada or by
transfer to an account maintained with a bank located in the United States or
Canada; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any, on
any Bearer Security shall be made at the office of the Company's Paying Agent in
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States or Canada maintained for such purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 3.01 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Trustee in the Borough of Manhattan,
The City of New York as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
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10.03 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities and related coupons of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(2), 3.12(4) and 3.12(5)) sufficient
to pay the principal of (or premium, if any) or interest, if any, on Securities
of such series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause the bank through which payment of funds to the
Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York
Time) two Business Days prior to the due date of such payment an irrevocable
confirmation (by tested telex or authenticated Swift MT 100 Message) of its
intention to make such payment.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of
such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company in the
making of any payment of principal of (or premium, if any) or
interest, if any, on the Securities of such series; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years (or such shorter period under the applicable escheat
laws to permit repayment to the Company) after such principal, premium or
interest has become due and payable shall be paid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
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Security or coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, shall at
the written direction and at the expense of the Company cause to be published
once, in an Authorized Newspaper, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
10.04 STATEMENT AS TO COMPLIANCE AND NOTICE OF DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year (which as of the date hereof ends on the 31st day of
December), a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants under this Indenture.
For purposes of this Section 10.04, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture. As
soon as practicable and in any event within five Business Days after becoming
aware of any Default or Event of Default, the Company shall notify the Trustee
setting forth the details of such Default or Event of Default and any action
which the Company proposes to take with respect thereto.
10.05 ADDITIONAL AMOUNTS.
Unless otherwise specified pursuant to Section 3.01, all payments made
by or on behalf of the Company under or with respect to the Securities of any
series will be made free and clear of and without withholding or deduction for
or on account of any present or future tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of Canada
or any province or territory thereof or by any authority or agency therein or
thereof having power to tax (hereinafter "Canadian Taxes"), unless the Company
is required to withhold or deduct Canadian Taxes by law or by the interpretation
or administration thereof. 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 to each Holder of such
Securities as additional interest such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each such Holder after
such withholding or deduction (and after deducting any Canadian Taxes on such
Additional Amounts) will not be less than the amount such Holder would have
received if such Canadian Taxes had not been withheld or deducted. However, no
Additional Amounts will be payable with respect to a payment made to a Holder
(such Holder, an "Excluded Holder") in respect of the beneficial owner thereof:
(a) with which the Company does not deal at arm's length (for the
purposes of the Income Tax Act (Canada)) at the time of the
making of such payment;
(b) that is subject to such Canadian Taxes by reason of the Holder
being a resident, domiciliary or national of, or engaged in
business or maintaining a permanent establishment or other
physical presence in or otherwise having some connection with
Canada or any province or territory thereof otherwise than by
the mere holding of Securities or the receipt of payments
thereunder;
(c) that is subject to such Canadian Taxes by reason of the
Holder's failure to comply with any certification,
identification, documentation or other reporting requirements
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 the Company
shall give written
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notice to the Trustee and the Holders of the Securities then
outstanding of any change in such requirements); or
(d) that by reason of the legal nature of the Holder is
disentitled to the benefit of any applicable treaty.
The Company will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law.
The Company will furnish to the Holders of the Securities, within 60
days after the date the payment of any Canadian Taxes is due pursuant to
applicable law, certified copies of tax receipts or other documents evidencing
such payment by such person.
The Company will indemnify and hold harmless each Holder (other than an
Excluded Holder) and, upon written request, reimburse each such Holder for the
amount (excluding any Additional Amounts that have previously been paid by the
Company with respect thereto) of:
(a) any Canadian Taxes so levied or imposed and paid by such
▇▇▇▇▇▇ as a result of payments made under or with respect to
the Securities;
(b) any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto; and
(c) any Canadian Taxes imposed with respect to any reimbursement
under clause (a) or (b) in this paragraph, but excluding any
such Canadian Taxes on such ▇▇▇▇▇▇'s net income.
At least five (5) days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Company will be
obligated to pay Additional Amounts with respect to such payment, the Company
will deliver to the Trustee an Officer's Certificate stating the fact that such
Additional Amounts will be payable and specifying the amounts so payable and
will set forth such other information necessary to enable the Trustee to pay
such Additional Amounts (upon receipt by the Trustee from the Company of such
Additional Amounts) to Holders on the date on which such payment is due and
payable.
Wherever in this Indenture there is mentioned, in any context, the
payment of principal (or premium, if any), interest, if any, or any other amount
payable under or with respect to a Security, such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
10.06 CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer necessary or desirable in the conduct of the business of the
Company and its Subsidiaries as a whole.
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10.07 WAIVER OF CERTAIN COVENANTS.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition that affects
such series as specified pursuant to Section 3.01(q) for Securities of such
series, in any covenants added to Article Ten pursuant to Section 3.01(p) or
Section 3.01(q) in connection with Securities of such series, if before the time
for such compliance the Holders of at least a majority in principal amount of
all Outstanding Securities of such series, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
11.01 APPLICABILITY OF ARTICLE.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article.
11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be reasonably satisfactory
to the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 11.03. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
11.03 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot in such manner as the
Trustee shall deem fair and appropriate and that may provide for the selection
for redemption of portions of the principal of Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series established pursuant to
Section 3.01.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
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11.04 NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 3.01, notice
of redemption shall be given in the manner provided for in Section 1.06 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice in the manner provided in
Section 1.06 to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or part thereof.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 11.06, if any,
(c) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, that on
and after the Redemption Date, upon surrender of such
Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(e) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided
in Section 11.06 will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(f) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued
interest, if any,
(g) that the redemption is for a sinking fund, if such is the
case,
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished,
(i) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date
pursuant to Section 3.05 or otherwise, the last date, as
determined by the Company, on which such exchanges may be
made, and
(j) the CUSIP number or numbers.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
11.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York, New York time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money in the Currency in which the
Securities of such series are payable (except, if applicable, as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(2), 3.12(4) and 3.12(5)) sufficient
to pay the Redemption Price of, and accrued interest, if any, on, all the
Securities that are to be redeemed on that date.
11.06 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except, if applicable, as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(2), 3.12(4) and 3.12(5)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that instalments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States and Canada (except as
otherwise provided in Section 10.02) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of coupons
for such interest; and provided further that instalments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated by Section 3.01,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
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11.07 SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such ▇▇▇▇▇▇'s
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
11.08 TAX REDEMPTION.
Unless otherwise specified pursuant to Section 3.01, the Company shall
have the right to redeem the Securities of any series, in whole but not in part,
at a Redemption Price equal to the principal amount thereof together with
accrued and unpaid interest to the date fixed for redemption, upon the giving of
a notice and on the terms and subject to satisfaction of the other conditions
described below, if (1) there is any change or amendment (including any
announced prospective change or amendment) to the laws (or any regulations or
rulings promulgated thereunder) of Canada or of any political subdivision or
taxing authority thereof or therein, affecting taxation, or any change in the
application or interpretation of such laws, regulations or rulings by any
applicable legislative body, court, governmental agency or regulatory authority
of Canada or of any political subdivision or taxing authority thereof or
therein, which change or amendment is announced or becomes effective on or after
the date of issuance with respect to the Securities of such series and, in a
written opinion to the Company of legal counsel of recognized standing, as a
result of such change or amendment, the Company has or will (assuming, in the
case of any announced prospective change or amendment, that such announced
change or amendment will become effective as of the date specified in such
announcement and in the form announced) become obligated to pay, on the next
succeeding date on which interest is due, Additional Amounts with respect to any
Security of such series pursuant to Section 10.05 and (2) the Company (or its
successor), in its business judgment, determines that such obligation cannot be
avoided by the use of reasonable measures available to it; provided, however,
that (i) no such notice of such redemption may be given earlier than 90 days
prior to the earliest date on which the Company would be obligated, but for such
redemption, to pay such Additional Amounts or later than 365 days after the
Company first becomes liable to pay any Additional Amounts as a result of any
changes or amendments described above; (ii) at the time such notice of
redemption is given, such obligation to pay such Additional Amounts remains in
effect. Any redemption pursuant to this Section 11.08 shall be effected in
accordance with the other provisions of this Article.
In the event that the Company elects to redeem the Securities of any
series pursuant to this Section, it shall deliver to the Trustee, prior to the
giving of the notice of redemption to Holders, an Officer's Certificate stating
that it is entitled to redeem the Securities of such series pursuant to this
Section.
ARTICLE TWELVE
SINKING FUNDS
12.01 APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such
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minimum amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 12.03, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series that have been previously delivered to the Trustee by the Company
for Securities of such series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of the same series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, however, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
12.03 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
that is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(2), 3.12(4) and 3.12(5)) and the portion thereof, if
any, that is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 12.02 (which Securities will, if not previously
delivered, accompany such certificate) and whether the Company intends to
exercise its right to make a permitted optional sinking fund payment with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.06 and 11.07.
On or prior to 10:00 a.m. (New York, New York time) on any sinking fund
payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) in cash a sum equal to any interest that
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will accrue to the date fixed for redemption of Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section 12.03.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any Paying Agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
13.01 APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
13.02 REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(2), 3.12(4) and 3.12(5)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
13.03 EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places or that the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
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repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
13.04 WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States and Canada (except as otherwise provided in Section 10.02) and,
unless otherwise specified pursuant to Section 3.01, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, instalments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 13.02 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless.
If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States and Canada (except as otherwise
provided in Section 10.02) and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
13.05 SECURITIES REPAID IN PART.
Upon surrender of any Registered Security that is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series of
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any authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered that is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
14.01 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, the provisions of this Article shall apply to each
series of Securities, and the Company may, at its option, effect defeasance of
the Securities of or within a series under Section 14.02, or covenant defeasance
of or within a series under Section 14.03 in accordance with the terms of such
Securities and in accordance with this Article.
14.02 DEFEASANCE AND DISCHARGE.
Upon the exercise by the Company of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 14.04 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 14.05 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all their other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following that shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 14.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 3.04,
3.05, 3.06, 10.02, 10.03, with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 10.05, and with respect to
the Trustee under Section 6.06 and the Authenticating Agent under Section 6.11,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article. Subject to compliance with this Article, the Company may
exercise its option under this Section 14.02 notwithstanding the prior exercise
of the option under Section 14.03 with respect to such Securities and any
related coupons.
14.03 COVENANT DEFEASANCE.
Upon the exercise by the Company of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Article Eight and Section 10.06, and, if
specified pursuant to Section 3.01, its obligations under any other covenant,
with respect to such Outstanding Securities and any related coupons on and after
the date the conditions set forth in Section 14.04 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any related coupons shall
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
related coupons, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
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constitute a Default or an Event of Default under Section 5.01(h) or Section
5.01(i) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any related coupons shall be
unaffected thereby.
14.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
14.02 or Section 14.03 to any Outstanding Securities of or within a series and
any related coupons:
(a) The Company has deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of
Section 6.07 who shall agree to comply with the provisions of
this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an
amount (in such Currency in which such Securities and any
related coupons are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such
Securities (determined on the basis of the Currency in which
such Securities are then specified as payable at Stated
Maturity) that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment of principal of and premium, if any, and interest,
if any, under such Securities and any related coupons, money
in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and that shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal
(and premium, if any) or instalment of interest, if any, and
(ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any related
coupons on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such
Securities and any related coupons; provided that the Trustee
shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to said payments
with respect to such Securities and any related coupons.
Before such a deposit, the Company may give to the Trustee, in
accordance with Section 11.02 hereof, a notice of its election
to redeem all or any portion of such Outstanding Securities at
a future date in accordance with the terms of the Securities
of such series and Article Eleven hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(b) In the case of an election under Section 14.02, the
Company shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (x) the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution
of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any related coupons
will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance and will be
subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case
if such defeasance had not occurred.
(c) In the case of an election under Section 14.03, the Company
shall have delivered to the Trustee an Opinion of Counsel in
the United States to the effect that the Holders of such
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Outstanding Securities and any related coupons will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(d) The Company has delivered to the Trustee an Opinion of
Counsel in Canada or a ruling from Canada Customs and Revenue
Agency (or its successor) to the effect that the Holders of
such Outstanding Securities and any related coupons will not
recognize income, gain or loss for Canadian federal and
provincial income tax or other tax purposes as a result of
such defeasance or covenant defeasance and will be subject to
Canadian federal and provincial income tax and other tax
(including withholding tax) on the same amounts, in the same
manner and at the same times as would have been the case had
such defeasance or covenant defeasance not occurred (and for
the purposes of such opinion, such Canadian counsel shall
assume that Holders of such outstanding Securities include
Holders who are not resident in Canada).
(e) The Company is not an "insolvent person" within the meaning of
the Bankruptcy and Insolvency Act (Canada) on the date of such
deposit or at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(f) No Event of Default or event that, with the passing of time or
the giving of notice, or both, shall constitute an Event of
Default with respect to such Securities or any related coupons
shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (d), (e) and (f) of Section
5.01 are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until the expiration of such period).
(g) The Company has delivered to the Trustee an Opinion of Counsel
to the effect that such deposit shall not cause the Trustee or
the trust so created to be subject to the Investment Company
Act of 1940, as amended.
(h) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(i) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions
or limitations in connection therewith pursuant to Section
3.01.
(j) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the
defeasance under Section 14.02 or the covenant defeasance
under Section 14.03 (as the case may be) have been complied
with.
14.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 10.03, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.01) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 14.05, the
"Trustee") pursuant to Section 14.04 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such
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Securities and any related coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in Section 14.04(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(2) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 14.04(a) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 3.12(4)or 3.12(5) or by the
terms of any Security in respect of which the deposit pursuant to Section
14.04(a) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 14.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company, from time to time upon request of the
Company, any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 14.04 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
14.06 REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.05 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 14.05; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any, on
any such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment from the money
held by the Trustee or Paying Agent.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
15.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of one or more series of Securities may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
15.02 CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 15.01, to be held at such
time and at such place in The City of New York, Toronto, Ontario or in London,
England as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided for in Section 1.06, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 15.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York or in Toronto, Ontario, Canada or in London, England for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in paragraph (1) of this Section.
15.03 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder of Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
respective counsel.
15.04 QUORUM; ACTION.
A quorum for a meeting of Holders of Securities of a series shall
consist of two or more Persons present in person holding either personally or as
proxies not less than 50% in principal amount of the Outstanding Securities of
such series. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 15.02(1) except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened.
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Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum, Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series at such meetings.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 15.04, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii the principal amount of the Outstanding Securities of
such series that vote in favor of such request,
demand, authorization, direction, notice, consent,
waiver or other action shall be taken into account in
determining whether such request, demand,
authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this
Indenture.
15.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(1) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as its shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.04 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.04 or other proof.
(2) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.02(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 1.01); provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and
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ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
15.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.02 and, if
applicable, Section 15.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
FOUR SEASONS HOTELS INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
FOUR SEASONS HOTELS INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are not owned by
any person(s) that is a citizen or resident of the United States; a corporation
or partnership (including any entity treated as a corporation or partnership for
United States federal income tax purposes) created or organized in or under the
laws of the United States, any state thereof or the District of Columbia unless,
in the case of a partnership, United States Treasury Regulations provide
otherwise; any estate whose income is subject to United States federal income
tax regardless of its source or; a trust if (A) a United States court can
exercise primary supervision over the trust's administration and one or more
United States persons are authorized to control all substantial decisions of the
trust or (B) a trust in existence on August 20, 1996, and treated as a United
States person before this date that timely elected to continue to be treated as
a United States person ("United States persons(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulation Section 1.165-12(c)(1)(iv) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise Four Seasons Hotels Inc. or its agent
that such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulation Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America (including
the states and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
A-1
This certificate excepts and does not relate to [U.S.$] of such interest in the
above-captioned Securities in respect of which we are not able to certify and as
to which we understand an exchange for an interest in a Permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with certain
tax legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:
---------------------------------------------
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date,
as applicable]
-------------------------------------
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
A-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
FOUR SEASONS HOTELS INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, [U.S.$] principal amount of the
above-captioned Securities (i) is not owned by any person(s) that is a citizen
or resident of the United States; a corporation or partnership (including any
entity treated as a corporation or partnership for United States federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia unless, in the case of a
partnership, United States Treasury Regulations provide otherwise; any estate
whose income is subject to United States federal income tax regardless of its
source or; a trust if (A) a United States court can exercise primary supervision
over the trust's administration and one or more United States persons are
authorized to control all substantial decisions of the trust or (B) a trust in
existence on August 20, 1996, and treated as a United States person before this
date that timely elected to continue to be treated as a United States person
("United States person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulation Section
1.165-12(c)(1)(iv) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Four Seasons Hotels Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, to the
further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America (including
the states and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange
(or, if relevant, collection of any interest) any portion of the temporary
global Security representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and (ii) as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
A-3
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:
----------------------------------------------
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
EUROCLEAR S.A./N.V., as Operator of the
Euroclear System] [CLEARSTREAM]
By:
---------------------------------------
A-4