Exhibit 1.1
EXECUTION COPY
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BIOVAIL CORPORATION,
as Issuer
and
COMPUTERSHARE TRUST COMPANY, INC.,
as U.S. Trustee
COMPUTERSHARE TRUST COMPANY OF CANADA,
as Canadian Trustee
---------
Indenture
Dated as of
March 28, 2002
---------
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BIOVAIL CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture
Trust Indenture Indenture Section
Act Section
ss. 310(a) ......................... 608(a)
(b) ......................... 609
(c) ......................... Not Applicable
ss.311(a), (b) ......................... 504
(c) ......................... Not Applicable
ss.312(a) ......................... 703
(b) ......................... 702
(c) ......................... 701
ss.313(a), (b), (c) ......................... 702
(d) ......................... 703
ss. 314(a)(1), (2), (3) ......................... 703
(a)(4) ......................... 1004
(c)(1), (2) ......................... 102
(e) ......................... 102
(f) ......................... Not Applicable
ss. 315(a) ......................... 602
(b) ......................... 601
(c), (d) ......................... 602
(e) ......................... 515
ss. 316(a)(last
sentence) ......................... 101 ("Outstanding")
(a)(1)(A) ......................... 502
(a)(1)(B) ......................... 502, 513
(a)(2) ......................... Not Applicable
(b) ......................... 508
(c) ......................... 104(e)
ss. 317(a)(1) ......................... 503
(a)(2) ......................... 504
(b) ......................... 1003
ss. 318(a) ......................... 116
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES..........................................................................................................1
RECITALS OF THE COMPANY..........................................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions...................................................................................1
"Act"..................................................................................2
"Additional Amounts"...................................................................2
"Affiliate"............................................................................2
"Authenticating Agent".................................................................2
"Authorized Newspaper".................................................................2
"Base Currency"........................................................................2
"Bearer Security"......................................................................2
"Board of Directors"...................................................................2
"Board Resolution".....................................................................3
"Branch Register"......................................................................3
"Branch Security Registrar"............................................................3
"Business Day".........................................................................3
"calculation period"...................................................................3
"Canadian Securities Authorities"......................................................3
"Canadian Taxes".......................................................................3
"Canadian Trustee".....................................................................3
"Capital Stock"........................................................................3
"Central Register".....................................................................3
"Central Security Registrar"...........................................................3
"Commission"...........................................................................3
"Common Depositary"....................................................................3
"Company"..............................................................................4
"Company Request" or "Company Order"...................................................4
"Component Currency"...................................................................4
"Conversion Date"......................................................................4
"Conversion Event".....................................................................4
"Corporate Trust Office"...............................................................4
"corporation"..........................................................................4
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
"covenant defeasance"..................................................................4
"coupon"...............................................................................4
"Currency".............................................................................4
"Debt".................................................................................4
"Default"..............................................................................4
"Defaulted Interest"...................................................................4
"defeasance"...........................................................................5
"Depositary"...........................................................................5
"Dollar" or "$"........................................................................5
"Dollar Equivalent of the Currency Unit"...............................................5
"Dollar Equivalent of the Foreign Currency"............................................5
"Election Date"........................................................................5
"Euro".................................................................................5
"Euroclear"............................................................................5
"Event of Default".....................................................................5
"Exchange Act".........................................................................5
"Exchange Date"........................................................................5
"Exchange Rate Agent"..................................................................5
"Exchange Rate Officers' Certificate"..................................................5
"Exchanges"............................................................................6
"Excluded Holder"......................................................................6
"Extension Notice".....................................................................6
"Extension Period".....................................................................6
"Final Maturity".......................................................................6
"First Currency".......................................................................6
"Foreign Currency".....................................................................6
"Government Obligations"...............................................................6
"Holder"...............................................................................6
"Indenture"............................................................................6
"Indexed Security".....................................................................7
"interest".............................................................................7
"Interest Payment Date"................................................................7
"Judgment Currency"....................................................................7
"mandatory sinking fund payment".......................................................7
"Market Exchange Rate".................................................................7
"Maturity".............................................................................8
"Notice of Default"....................................................................8
"OBCA".................................................................................8
"Officers' Certificate"................................................................8
"Opinion of Counsel"...................................................................8
"Optional Reset Date"..................................................................8
"optional sinking fund payment"........................................................8
"Original Issue Discount Security".....................................................8
"Original Stated Maturity".............................................................8
"Other Currency".......................................................................8
"Outstanding"..........................................................................8
"Paying Agent".........................................................................9
"Person"...............................................................................9
iii
"Place of Payment".....................................................................9
"Predecessor Security"................................................................10
"rate(s) of exchange".................................................................10
"Redemption Date".....................................................................10
"Redemption Price"....................................................................10
"Registered Security".................................................................10
"Regular Record Date".................................................................10
"Repayment Date"......................................................................10
"Repayment Price".....................................................................10
"Reset Notice"........................................................................10
"Responsible Officer".................................................................10
"Securities"..........................................................................10
"Security Register" and "Security Registrar"..........................................11
"Special Record Date".................................................................11
"Specified Amount"....................................................................11
"Stated Maturity".....................................................................11
"Subsidiary"..........................................................................11
"Subsequent Interest Period"..........................................................11
"Trust Indenture Act" or "TIA"........................................................11
"Trust Indenture Legislation".........................................................11
"Trustee" or "Trustees"...............................................................11
"UCC".................................................................................11
"U.S. Federal Bankruptcy Code"........................................................12
"U.S. Trustee"........................................................................12
"United States".......................................................................12
"United States person"................................................................12
"Valuation Date"......................................................................12
"Vice President"......................................................................12
"Voting Stock"........................................................................12
"Yield to Maturity"...................................................................12
Section 102. Compliance Certificates and Opinions.........................................................12
Section 103. Form of Documents Delivered to Trustees......................................................13
Section 104. Acts of Holders..............................................................................14
Section 105. Notices, etc. to Trustees and Company........................................................15
Section 106. Notice to Holders; Waiver....................................................................16
Section 107. Effect of Headings and Table of Contents.....................................................17
Section 108. Successors and Assigns.......................................................................17
Section 109. Separability Clause..........................................................................17
Section 110. Benefits of Indenture........................................................................17
Section 111. Governing Law................................................................................17
Section 112. Legal Holidays...............................................................................17
Section 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities..........................18
Section 114. Conversion of Currency.......................................................................18
Section 115. Currency Equivalent..........................................................................19
Section 116. Conflict with Trust Indenture Legislation....................................................20
iv
ARTICLE TWO Securities Forms
Section 201. Forms Generally..............................................................................20
Section 202. Form of Trustee's Certificate of Authentication..............................................21
Section 203. Securities Issuable in Global Form...........................................................21
ARTICLE THREE THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.........................................................22
Section 302. Denominations................................................................................26
Section 303. Execution, Authentication, Delivery and Dating...............................................26
Section 304. Temporary Securities.........................................................................28
Section 305. Registration, Registration of Transfer and Exchange..........................................31
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.............................................34
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset......................36
Section 308. Optional Extension of Stated Maturity........................................................38
Section 309. Persons Deemed Owners........................................................................39
Section 310. Cancellation.................................................................................39
Section 311. Computation of Interest......................................................................40
Section 312. Currency and Manner of Payments in Respect of Securities.....................................40
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.................................43
ARTICLE FOUR SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture......................................................44
Section 402. Application of Trust Money...................................................................45
ARTICLE FIVE REMEDIES
Section 501. Events of Default............................................................................45
Section 502. Acceleration of Maturity; Rescission and Annulment...........................................47
Section 503. Collection of Debt and Suits for Enforcement by Trustees.....................................48
Section 504. Trustees May File Proofs of Claim............................................................48
Section 505. Trustees May Enforce Claims Without Possession of Securities.................................49
Section 506. Application of Money Collected...............................................................49
Section 507. Limitation on Suits..........................................................................50
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....................51
Section 509. Restoration of Rights and Remedies...........................................................51
Section 510. Rights and Remedies Cumulative...............................................................51
Section 511. Delay or Omission Not Waiver.................................................................51
Section 512. Control by Holders...........................................................................51
Section 513. Waiver of Past Defaults......................................................................52
Section 514. Waiver of Stay or Extension Laws.............................................................52
Section 515. Undertaking for Costs........................................................................53
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ARTICLE SIX THE TRUSTEE
Section 601. Notice of Defaults...........................................................................53
Section 602. Certain Duties and Responsibilities of Trustees..............................................53
Section 603. Certain Rights of Trustees...................................................................55
Section 604. Trustees Not Responsible for Recitals or Issuance of Securities..............................56
Section 605. May Hold Securities..........................................................................56
Section 606. Money Held in Trust..........................................................................56
Section 607. Compensation and Reimbursement...............................................................56
Section 608. Corporate Trustees Required; Eligibility.....................................................57
Section 609. Resignation and Removal; Appointment of Successor............................................58
Section 610. Acceptance of Appointment by Successor.......................................................59
Section 611. Merger, Conversion, Consolidation or Succession to Business..................................60
Section 612. Appointment of Authenticating Agent..........................................................61
Section 613. Joint Trustees...............................................................................63
ARTICLE SEVEn HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.................................................63
Section 702. Reports by Trustees..........................................................................63
Section 703. Reports by the Company.......................................................................64
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.........................................65
Section 802. Successor Person Substituted.................................................................66
ARTICLE NINE SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders...........................................66
Section 902. Supplemental Indentures with Consent of Holders..............................................67
Section 903. Execution of Supplemental Indentures.........................................................69
Section 904. Effect of Supplemental Indentures............................................................69
Section 905. Conformity with Trust Indenture Legislation..................................................69
Section 906. Reference in Securities to Supplemental Indentures...........................................69
Section 907. Notice of Supplemental Indentures............................................................69
ARTICLE TEN COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest..........................................69
Section 1002. Maintenance of Office or Agency..............................................................70
Section 1003. Money for Securities Payments to Be Held in Trust............................................71
Section 1004. Statement as to Compliance...................................................................72
Section 1005. Additional Amounts...........................................................................73
Section 1006. Payment of Taxes and Other Claims............................................................74
Section 1007. Corporate Existence..........................................................................74
Section 1008. Waiver of Certain Covenants..................................................................74
vi
ARTICLE ELEVEN REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.....................................................................75
Section 1102. Election to Redeem; Notice to Trustees.......................................................75
Section 1103. Selection by Trustees of Securities to Be Redeemed...........................................75
Section 1104. Notice of Redemption.........................................................................76
Section 1105. Deposit of Redemption Price..................................................................77
Section 1106. Securities Payable on Redemption Date........................................................77
Section 1107. Securities Redeemed in Part..................................................................78
Section 1108. Tax Redemption...............................................................................78
ARTICLE TWELVE SINKING FUNDS
Section 1201. Applicability of Article.....................................................................79
Section 1202. Satisfaction of Sinking Fund Payments with Securities........................................79
Section 1203. Redemption of Securities for Sinking Fund....................................................79
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article.....................................................................80
Section 1302. Repayment of Securities......................................................................81
Section 1303. Exercise of Option...........................................................................81
Section 1304. When Securities Presented for Repayment Become Due and Payable...............................81
Section 1305. Securities Repaid in Part....................................................................82
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance.................................83
Section 1402. Defeasance and Discharge.....................................................................83
Section 1403. Covenant Defeasance..........................................................................83
Section 1404. Conditions to Defeasance or Covenant Defeasance..............................................84
Section 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions ..................................................................................86
Section 1406. Reinstatement................................................................................87
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called....................................................87
Section 1502. Call, Notice and Place of Meetings...........................................................87
Section 1503. Persons Entitled to Vote at Meetings.........................................................88
Section 1504. Quorum; Action...............................................................................88
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..........................89
Section 1506. Counting Votes and Recording Action of Meetings..............................................89
vii
TESTIMONIUM.....................................................................................................91
SIGNATURES AND SEALS............................................................................................91
FORMS OF CERTIFICATION...................................................................................EXHIBIT A
INDENTURE, dated as of March 28, 2002 between BIOVAIL CORPORATION, a
corporation duly amalgamated and existing under the laws of the Province of
Ontario, Canada (herein called the "Company"), having its principal office at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and Computershare Trust
Company Inc., a trust company duly organized and existing under the laws of the
State of Colorado, as U.S. trustee (herein called the "U.S. Trustee"), and
Computershare Trust Company of Canada, a trust company duly organized and
existing under the laws of Canada, as Canadian trustee (the "Canadian Trustee"
and, together with the U.S. Trustee, the "Trustees").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), which may be convertible into or exchangeable for any securities
of any person (including the Company), to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of Trust Indenture Legislation
(as defined below) that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as defined below) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) "or" is not exclusive;
(6) words implying any gender shall apply to all genders; and
(7) the words Subsection, Section and Article refer to the
Subsections, Sections and Articles, respectively, of this Indenture unless
otherwise noted.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by either Trustee
pursuant to Section 612 to act on behalf of such Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Base Currency" has the meaning specified in Section 114.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of such board.
3
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustees.
"Branch Register" has the meaning specified in Section 305.
"Branch Security Registrar" has the meaning specified in Section 305.
"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
301, any day other than Saturday, Sunday or any other day on which commercial
banking institutions in that Place of Payment or other location are permitted or
required by any applicable law, regulation or executive order to close.
"calculation period" has the meaning specified in Section 311.
"Canadian Securities Authorities" means the securities commissions or
similar authorities in Canada.
"Canadian Taxes" has the meaning specified in Section 1005.
"Canadian Trustee" means the Person named as the "Canadian Trustee" in the
first paragraph of this Indenture until a successor Canadian Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Canadian Trustee" shall mean or include each Person who is then a
Canadian Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Canadian Trustee" as used with respect to the Securities
of any series shall mean only the Canadian Trustee with respect to Securities of
that series.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents however designated in
the equity interest in such Person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire any equity
interest in such Person.
"Central Register" has the meaning specified in Section 305.
"Central Security Registrar" has the meaning specified in Section 305.
"Clearstream" means Clearstream Banking, societe anonyme, or its successor.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
4
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, the President, the Chief Executive
Officer, the Chief Operating Officer or a Vice President, or if two or more
persons share such office any one of such persons, and by the Chief Financial
Officer, the Chief Accounting Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, or if two or more
persons share such office any one of such persons, and delivered to the
Trustees.
"Component Currency" has the meaning specified in Section 312.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the Euro or other currency unit) both by the government of the
country which issued such Currency and by a central bank or other public
institution of or within the international banking community for the settlement
of transactions, (ii) the Euro or (iii) any currency unit (or composite
currency) other than the Euro for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
U.S. Trustee or the Canadian Trustee, as applicable, at which at any particular
time its corporate trust business shall be administered, which office on the
date of execution of this Indenture of the U.S. Trustee is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and of the Canadian Trustee is
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 12th Floor, South Tower, Toronto, Ontario, M5J
2Y1, except that with respect to presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office or agency
of the U.S. Trustee or the Canadian Trustee, as applicable, designated in
writing to the Company at which, at any particular time, its corporate agency
business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"covenant defeasance" has the meaning specified in Section 1403.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the Euro, issued by the
government of one or more countries or by any recognized confederation or
association of such governments.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
5
"defeasance" has the meaning specified in Section 1402.
"Depositary" means with respect to the Securities of any series issuable or
issued in the form of one or more Registered Securities, the Person designated
as Depositary by the Company pursuant to Section 305 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Securities of that
series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 312(f).
"Election Date" has the meaning specified in Section 312(h).
"Euro" means the single currency of the participating member states from
time to time of the European Union described in legislation of the European
Counsel for the operation of a single unified European currency (whether known
as the Euro or otherwise).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York clearing house bank, designated pursuant to Section 301
or Section 313.
"Exchange Rate Officers' Certificate" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 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.
6
"Exchanges" means The New York Stock Exchange and The Toronto Stock
Exchange and any other securities exchange upon which the Securities are or
become listed.
"Excluded Holder" has the meaning specified in Section 1005.
"Extension Notice" has the meaning specified in Section 308.
"Extension Period" has the meaning specified in Section 308.
"Final Maturity" has the meaning specified in Section 308.
"First Currency" has the meaning specified in Section 115.
"Foreign Currency" means any Currency other than Currency of the United
States.
"Government Obligations" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, securities which are (i)
direct obligations of the government which issued the Currency in which the
Securities of a particular series are payable or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; 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 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms
7
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity at the rate prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 114.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or ▇▇▇▇▇ ▇ ▇▇▇▇ or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"mandatory sinking fund payment" has the meaning specified in Section 1201.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (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 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in New York City, Toronto, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, Toronto, London or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
Currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase such Currency in
order to make payments in respect of such securities.
8
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Notice of Default" has the meaning specified in Section 501.
"OBCA" means the Business Corporations Act (Ontario), as amended.
"Officers' Certificate" means a certificate, which shall comply with this
Indenture, signed by the Chairman of the Board of Directors, a Vice Chairman of
the Board of Directors, the President, the Chief Executive Officer, the Chief
Operating Officer or a Vice President, or if two or more persons share such
office any one of such persons, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, or if two or more persons share such office
any one of such persons, and delivered to the Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section 307.
"optional sinking fund payment" has the meaning specified in Section 1201.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" has the meaning specified in Section 308.
"Other Currency" has the meaning specified in Section 115.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by a Trustee or delivered to a Trustee
for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or
repayment at the option of the Holder, money in the necessary amount has been
theretofore deposited with a Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustees has been made;
(iii) Securities, except to the extent provided in Sections 1402 and 1403,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
9
(iv) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustees proof satisfactory to them that
such Securities are held by a protected purchaser (as defined in Article 8 of
the UCC) in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officers' Certificate
delivered to the Trustees, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustees shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustees know to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustees the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, body corporate, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, each place where the principal of (and premium, if any) and
interest, if any, on such Securities are payable in the United States and Canada
as specified as contemplated by Sections 301 and 1002.
10
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 306 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 114.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture, plus accrued and unpaid interest thereon to the Redemption Date.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment pursuant to this
Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307.
"Responsible Officer", when used with respect to a Trustee, means any vice
president, secretary, any assistant secretary, treasurer, any assistant
treasurer, cashier, any assistant cashier, any senior trust officer, any trust
officer or assistant trust officer, the controller or any assistant controller
within the corporate trust administration division of a Trustee or any other
officer of a Trustee customarily performing functions similar to those performed
by any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
11
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustees
pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 312.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means, any corporation of which at the time of determination
the Company, directly and/or indirectly through one or more Subsidiaries, owns
more than 50% of the shares of Voting Stock or partnership, joint venture,
limited liability company, association, company or business trust interests.
"Subsequent Interest Period" has the meaning specified in Section 307.
"Trust Indenture Act" or "TIA" means the United States Trust Indenture Act
of 1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trust Indenture Legislation" means, at any time, the provisions of (i) the
OBCA and the regulations thereunder as amended or re-enacted from time to time,
but only to the extent applicable, (ii) the provisions of any other applicable
statute of Canada or any province thereof and the regulations thereunder as
amended or re-enacted from time to time, but only to the extent applicable, or
(iii) the Trust Indenture Act and regulations thereunder, in each case, relating
to trust indentures and to the rights, duties and obligations of trustees under
trust indentures and of corporations issuing debt obligations under trust
indentures, to the extent that such provisions are at such time in force and
applicable to this Indenture or the Company or the Trustees.
"Trustee" or "Trustees" means U.S. Trustee and the Canadian Trustee. If a
Canadian Trustee is not appointed under this Indenture, or resigns or is removed
and, pursuant to Section 609, the Company is not required to appoint a successor
Trustee to the Canadian Trustee, "Trustee", "Trustees" and any reference to
"either Trustee", "both of the Trustees" or such similar references shall mean
the Person named as the U.S. Trustee or any successor thereto appointed pursuant
to the applicable provisions of this Indenture. Except to the extent otherwise
indicated, "Trustees" shall refer to the Canadian Trustee (if appointed and
still serving) and the U.S. Trustee, both jointly and individually.
"UCC" means the New York uniform commercial code in effect from time to
time.
12
"U.S. Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"U.S. Trustee" means the Person named as the "U.S. Trustee" in the first
paragraph of this Indenture until a successor U.S. Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Trustee" shall mean or include each Person who is then a U.S. Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, "U.S. Trustee" as used with respect to the Securities of any series
shall mean only the U.S. Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the Trustees,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means with respect to any Person, securities of any class or
classes of Capital Stock in such Person entitling the holder thereof (whether at
all times or at the time that such class of Capital Stock has voting power by
reason of the happening of any contingency) to vote in the election of members
of the board of directors or comparable body of such Person.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustees to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustees an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and, if requested by the Trustee, an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
13
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 1004)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
Section 103. Form of Documents Delivered to Trustees.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify or give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, a
certificate of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which
such certificate or opinion may be based are erroneous. Any certificate or
opinion of any independent firm of public accountants filed with the Trustees
shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
14
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Securities of all series or one or more series, as the case may
be, may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustees
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustees and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustees deem sufficient.
(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustees to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustees to be
satisfactory. The Trustees and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustees by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities
15
held by any Person, and the date of holding the same, may also be proved in any
other manner that the Trustees deem sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Legislation, such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 105. Notices, etc. to Trustees and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the U.S. Trustee, by the Canadian Trustee, any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the U.S. Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or
(2) the Canadian Trustee, by the U.S. Trustee, any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Canadian Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(3) the Company by either Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company ,
Attention: Senior Vice President and Chief Financial Officer, Facsimile No:
(▇▇▇) ▇▇▇-▇▇▇▇ or such other officer or facsimile
16
number as the Company may designate on written notice to the Trustees,
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustees by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustees, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice
of any event to Holders of Registered Securities when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustees shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given to Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustees shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event,
17
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustees, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Trustees shall bind their successors and assigns, whether so expressed or not.
Section 109. 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.
Section 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture. Subject to
Section 117, at all times in relation to this Indenture and any action to be
taken hereunder, the Company and the Trustees each shall observe and comply with
Trust Indenture Legislation and the Company, the Trustees and each Holder of a
Security shall be entitled to the benefits of Trust Indenture Legislation.
Section 111. 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. Each Trustee and
the Company agrees to comply with all provisions of Trust Indenture Legislation
applicable to or binding upon it in connection with this Indenture and any
action to be taken hereunder.
Section 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment or other location contemplated hereunder,
then (notwithstanding any other provision of this Indenture or of any Security
or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment or other location contemplated hereunder on such date,
but may be made on the next succeeding Business Day at such Place of Payment or
other location contemplated hereunder with the same force and effect as if made
on the Interest Payment Date or Redemption Date or
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sinking fund payment date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be.
Section 113. 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
federal or New York state court located in The Borough of Manhattan, The City of
New York, or brought by the Trustees (whether in their individual capacity or in
their capacity as Trustees hereunder), (ii) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon CT Corporation System and written
notice of said service to the Company (mailed or delivered to the Company,
attention: General Counsel, at its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as specified in Section 105 hereof), shall
be deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as this Indenture shall
be in full force and effect.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any such action, suit or proceeding in any such court or any
appellate court with respect thereto. The Company irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action, suit or proceeding in any such court.
Section 114. Conversion of Currency.
(a) The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and this
Indenture:
(i) If for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into
a currency (the "Judgment Currency") an amount due or contingently due in
any other currency under the Securities of any series and this Indenture
(the "Base Currency"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which a final
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
19
(ii) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment referred to in (i)
above is given or an order of enforcement is made, as the case may be (or
such other date as a court shall determine), and the date of receipt of the
amount due, the Company shall pay such additional (or, as the case may be,
such lesser) amount, if any, as may be necessary so that the amount paid in
the Judgment Currency when converted at the rate of exchange prevailing on
the date of receipt will produce the amount in the Base Currency originally
due.
(b) In the event of the winding-up of the Company at any time while any
amount or damages owing under the Securities and this Indenture, or any judgment
or order rendered in respect thereof, shall remain outstanding, the Company
shall indemnify and hold the Holders and the Trustees harmless against any
deficiency arising or resulting from any variation in rates of exchange between
(1) the date as of which the equivalent of the amount in the Base Currency due
or contingently due under the Securities and this Indenture (other than under
this Subsection (b)) is calculated for the purposes of such winding-up and (2)
the final date for the filing of proofs of claim in such winding-up. For the
purpose of this Subsection (b) the final date for the filing of proofs of claim
in the winding-up of the Company shall be the date fixed by the liquidator or
otherwise in accordance with the relevant provisions of applicable law as being
the latest practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or otherwise
in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this
Section shall constitute separate and independent obligations of the Company
from its other obligations under the Securities and this Indenture, shall give
rise to separate and independent causes of action against the Company, shall
apply irrespective of any waiver or extension granted by any Holder or the
Trustees or either of them from time to time and shall continue in full force
and effect notwithstanding any judgment or order or the filing of any proof of
claim in the winding-up of the Company for a liquidated sum in respect of
amounts due hereunder (other than under Subsection (b) above) or under any such
judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustees, as the case may be,
and no proof or evidence of any actual loss shall be required by the Company or
its liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be increased or reduced by any variation in
rates of exchange occurring between the said final date and the date of any
liquidating distribution.
The term "rate(s) of exchange" shall mean the rate of exchange quoted by a
Canadian chartered bank as may be designated in writing by the Company to the
Trustees from time to time, at its central foreign exchange desk in its main
office in Toronto at 12:00 noon (Toronto time) on the relevant date for
purchases of the Base Currency with the Judgment Currency and includes any
premiums and costs of exchange payable.
The Trustees shall have no duty or liability with respect to monitoring or
enforcing this Section.
Section 115. 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
20
Currency of one nation (the "First Currency"), as of any date such amount shall
also be deemed to represent the amount in the Currency of any other relevant
nation (the "Other Currency") which is required to purchase such amount in the
First Currency at the Bank of Canada noon rate as reported by Telerate on screen
3194 (or such other means of reporting the Bank of Canada noon rate as may be
agreed upon by each of the parties to this Indenture) on the date of
determination.
Section 116. Conflict with Trust Indenture Legislation.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with any mandatory requirement of Trust Indenture Legislation, such
mandatory requirement shall control. If and to the extent that any provision
hereof modifies or excludes any provision of Trust Indenture Legislation that
may be so modified or excluded, the latter provision shall be deemed to apply
hereof as so modified or to be excluded, as the case may be.
Article Two
Securities Forms
Section 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustees at or prior to the delivery of the Company Order
contemplated by Section 303 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 301, Bearer
Securities shall have interest coupons attached.
Either Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
21
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, either Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed by either Trustee)
Dated: ____________________
Computershare Trust Company, Inc., as U.S. Trustee, certifies that this is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Computershare Trust Company, Inc,
as U.S. Trustee
By:
-----------------------------------------------
Authorized Officer
Dated: ____________________
Computershare Trust Company of Canada, as Canadian Trustee, certifies that
this is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Computershare Trust Company of Canada,
as Canadian Trustee
By:
-----------------------------------------------
Authorized Officer
Section 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified and contemplated by Section 301, then, notwithstanding clause (10) of
Section 301, 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 Trustees in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustees pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the
22
Trustees shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or Section 304 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 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustees the
Security in global form together with written instructions (which need not
comply with Section 102 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 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, 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 309 and except as provided in the
preceding paragraph, the Company, the Trustees and any agent of the Company and
the Trustees shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or Clearstream.
Article Three
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (19) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
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(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the extent and manner, if any, to which payment on or in respect
of the Securities of the series will be senior or will be subordinated to
the prior payment of other liabilities and obligations of the Company, and
whether the payment of principal, premium, if any, and interest, if any,
will be guaranteed by any other Person and the nature and priority of any
security;
(4) the percentage or percentages of principal amount at which the
Securities of the series will be issued;
(5) the date or dates, or the method by which such date or dates will
be determined or extended, on which the Securities of the series may be
issued and on which the principal of the Securities of the series is
payable;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date or dates shall
be determined, and the basis upon which interest shall be calculated if
other than on the basis of a 360-day year of 12 30-day months;
(7) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and, if different than the location specified in Section 105,
the place or places where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which,
the Currency in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
24
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(11) if other than the Trustees, the identity of each Security
Registrar and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(13) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of
the series shall be payable or in which the Securities of the series shall
be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(15) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or 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 312;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(19) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to Section 1008) 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;
25
(20) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by applicable
laws and regulations), whether Bearer Securities of the series may be
exchanged for Registered Securities of such series, and the circumstances
under which and the place or places where any such exchanges may be made
and, if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(21) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(22) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(23) if Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions;
(24) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(25) whether, under what circumstances and the Currency in which the
Company will pay Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder (including any modification to the
definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of any
such option);
(26) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(27) the applicability, if any, of Sections 1005 and 1108 to such
Securities;
26
(28) provisions as to modification, amendment or variation of any
rights or terms attaching to the Securities; and
(29) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of Trust Indenture
Legislation or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' 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 Trustees at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by any one of the President, Chief Executive Officer,
Chief Operating Officer, Chief Financial Officer, Chief Accounting Officer,
Treasurer, an Assistant Treasurer, Secretary or an Assistant Secretary of the
Company, or if two or more persons share such office any one of such persons.
The signature of any of these officers on the Securities or coupons may be the
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupon appertaining thereto, executed by the Company to the Trustees for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustees, or either
27
of them, in accordance with such Company Order shall authenticate and deliver
such Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301, 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
304, 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 306, the Trustees shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustees for the issuance of such Securities and
determining terms of particular Securities of such series such as interest rate,
stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustees shall be entitled to receive, and (subject to Trust Indenture
Legislation) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Company to the Trustees for authentication in accordance with this Indenture,
authenticated and delivered by the Trustees, or either of them, in accordance
with this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and delivery
by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery
of such Securities and any coupons and
28
the execution and delivery of the supplemental indentures, if any, by the
Trustees will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities and
any coupons, and has duly taken all necessary corporate action with respect to
such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or amalgamation or by-laws of the
Company or result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known to such
Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustees shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustees' own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustees.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall entitle a Holder to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the U.S. Trustee or by the Canadian Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustees for cancellation as
provided in Section 310 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never entitle a Holder to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustees, or either of them, shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively
29
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and either Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary") or the Depositary, as applicable, for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustees
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustees, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge and either Trustee shall authenticate and deliver, in exchange
for each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor 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 301, 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 301); and provided further that definitive
Bearer Securities shall be delivered
30
in exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Clearstream, as the case may be, to request such exchange on his 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 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and Clearstream, the Trustees, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear 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.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and Clearstream on such
Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustees
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section 301),
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 301). 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 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustees immediately prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
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Section 305. Registration, Registration of Transfer and Exchange.
So long as required by Trust Indenture Legislation, the Company shall keep
at its principal office in the Province of Ontario, or shall cause to be kept at
the office of a trust corporation registered under the Loan and Trust
Corporations Act (Ontario), a securities register (the "Central Register") of
Holders of each series of Securities maintained in compliance with the laws of
the Province of Ontario. The Company will cause the particulars of each such
issue, exchange or transfer of Securities to be recorded in the Central
Register. The Company shall initially be the central security registrar (the
"Central Security Registrar") for the purpose of registering Securities and
transfers and exchanges of Securities in the Central Register as provided
herein; provided, however, the Company may appoint from time to time one or more
successor Central Security Registrars and may from time to time rescind any such
appointment. If no longer required by Trust Indenture Legislation, the Company
may appoint a Person other than the Company or a trust corporation registered
under the Loan and Trust Corporations Act (Ontario) as the Central Securities
Registrar.
The Company shall also cause to be maintained a branch register (a "Branch
Register") or Branch Registers of Holders of Securities in accordance with
Section 1002 in the same manner and containing the same information with respect
to each entry contained therein as contained in the Central Register. A copy of
every entry in a Branch Register shall, promptly after the entry is made, be
transmitted to the Central Security Registrar. If there is a conflict between
the information contained in the Central Register and the information contained
in the Branch Register, the information contained in the Central Register shall
prevail. The Central Register together with each Branch Register are
collectively referred to herein as the "Security Register". At all reasonable
times, the Security Register shall be open to inspection by the Trustees. The
U.S. Trustee is hereby initially appointed as branch security registrar (the
"Branch Security Registrar") for the purpose of maintaining a Branch Register at
its Corporate Trust Office; provided, however, the Company may appoint from time
to time one or more successor or additional Branch Security Registrars and may
from time to time rescind any such appointment. The Central Security Registrar
together with each Branch Security Registrar are collectively referred to herein
as the "Security Registrar".
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and either Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and either Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
32
If (but only if) expressly permitted in or pursuant to the applicable Board
Resolution and (subject to Section 303) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as contemplated
by Section 301, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustees if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
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 either Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustees definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner's interest in such
permanent global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered by the Common Depositary or such other depositary as shall
be specified in the Company Order with respect thereto to the Trustees, as the
Company's agent for such purpose,
33
to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and either Trustee shall authenticate and deliver, in
exchange for each portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged which, unless the Securities of the series are not issuable both
as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected for
redemption; and provided, further, that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of 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 of a series notifies the Company that it is
unwilling, unable or no longer qualifies to continue as Depositary of such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor depositary with
respect to the Securities for such series. If a successor to the Depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company's
election pursuant to Section 301 shall no longer be effective with respect to
the Securities for such series and the Company will execute, and either Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the global
Security or Securities representing such series in exchange for such global
Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and either Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
34
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the U.S. Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the U.S. Trustee in writing.
The U.S. Trustee shall deliver such Securities to the persons in whose names
such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
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 1103 or 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, 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 which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to either Trustee, the Company shall execute
and either Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, or, in case any such
mutilated Security or coupon has become or is about to become due and payable,
the Company in its
35
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to the surrendered Security, pay such Security
or coupon.
If there shall be delivered to the Company and to either Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustees that such Security or coupon has been
acquired by a protected purchaser (as defined in Article 8 of the UCC), the
Company shall execute and upon Company Order either Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security for which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustees) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and the Holders of
such Security shall be entitled to all the benefits of this Indenture equally
and proportionately with the Holders of any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
36
Section 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest, if any, on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account located in the United States maintained by the payee of a Holder
of $2.0 million or more in aggregate principal amount of such Securities.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account located outside the United
States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Clearstream with respect to
that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustees in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
either Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustees for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the
37
Trustees shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustees of the notice of the proposed payment. The
Trustees shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
so given, such Defaulted Interest shall be paid to the Persons in whose
name the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and, upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustees.
(b) The provisions of this Subsection may be made applicable to any series
of Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustees of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustees shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or the spread
or spread multiplier, if applicable) that is higher than the interest rate (or
the spread or spread multiplier, if applicable) provided for in the Reset
Notice, for the Subsequent Interest Period by causing the Trustees to transmit,
in the manner provided for in Section 106, 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
38
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustees shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustees, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). 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 Trustees of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustees shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustees' transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustees to transmit, in
the manner provided for in Section 106, 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
39
repayment on the Original Stated Maturity once the Company has extended the
Maturity thereof, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders, except that the period for
delivery or notification to the Trustees shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension Notice, the Holder
may by written notice to the Trustees revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustees and any agent of the Company or the Trustees
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever (other
than the payment of Additional Amounts, if any), whether or not such Security be
overdue, and none of the Company, the Trustees or any agent of the Company or
the Trustees shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustees and any agent of the Company or the
Trustees may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustees or any agent of the Company or the Trustees shall be
affected by notice to the contrary.
None of the Company, the Trustees, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustees, or any agent of the Company or
the Trustees, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
Section 310. Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange or for credit
against any current or future sinking fund payment shall, if surrendered to any
Person other than a Trustee, be delivered to a Trustee. All Securities and
coupons so delivered to either Trustee shall be promptly cancelled by it. The
Company may at any time deliver to either Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to either Trustee
(or to any other Person for
40
delivery to such Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by such Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to a Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by a Trustee shall be
disposed of by such Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company unless by Company Order
the Company shall direct that cancelled Securities be returned to it.
Section 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 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.
Section 312. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have not
made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustees a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustees (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to
41
Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been sent
by such Holder or such transferee). Any Holder of any such Registered Security
who shall not have delivered any such election to the Trustees not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustees shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustees for such series of Registered
Securities an Exchange Rate Officers' Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar or Foreign Currency amount
receivable by Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (b) above shall be determined by the Company
on the basis of the applicable Market Exchange Rate in effect on the third
Business Day (the "Valuation Date") immediately preceding each payment date, and
such determination shall be conclusive and binding for all purposes, absent
manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then, with respect to
each date for the payment of principal of (and premium, if any) and interest, if
any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used
(the "Conversion Date"), the Dollar shall be the Currency of payment for use on
each such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustees and by the Trustees or
any Paying Agent to the Holders of such Securities with respect to such payment
date shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a 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
42
respect to the Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and subject to the provisions of paragraph (h) below shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the Euro.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the Euro, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar Equivalent value at the Market Exchange Rate on
the date of such replacement equal to the Dollar Equivalent value of the
Specified Amount of such former Component Currency at the Market Exchange
Rate immediately before such division and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the Euro, a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs
with respect to any 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.
43
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (15) of Section 301 by which the
written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustees and all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustees of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustees and to the Exchange Rate
Agent (and the Trustees will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the Euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustees and to the Exchange Rate Agent (and the Trustees will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent and
shall not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the Exchange Rate
Agent.
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, 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 301 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 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustees.
44
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor Exchange Rate
Agent may be appointed with respect to the Securities of one or more or all of
such series and that, unless otherwise specified pursuant to Section 301, at any
time there shall only be one Exchange Rate Agent with respect to the Securities
of any particular series that are originally issued by the Company on the same
date and that are initially denominated and/or payable in the same Currency).
Article Four
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto and
any right to receive Additional Amounts as contemplated by Section 1005) and the
Trustees, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in ▇▇▇▇▇▇▇
▇▇▇, (▇▇) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with either Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003) have been
delivered to either Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
either Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
45
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustees for the giving of notice of
redemption by the Trustees in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with either
Trustee as trust funds in trust for such purpose an amount in the
Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to such Trustee for
cancellation, for principal (and premium, if any), interest, if
any, and Additional Amounts, if any, to the date of such deposit
(in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustees an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustees under Section 607, the obligations of
the Trustees to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustees pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustees under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustees pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustees may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustees; but such money need not be segregated from other funds except to
the extent required by law.
Article Five
REMEDIES
Section 501. 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
46
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest (including Additional
Amounts) due on any Security of that series, or any related coupon, when
such interest or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal (or premium, if any) in
respect of any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund or analogous payment
when due by the terms of any Security of that series and Article Twelve; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture which affects or is applicable
to the Securities of that series (other than a covenant or agreement, a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustees or to the Company and the Trustees by
the Holders of at least 25% in principal amount of all Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under or subject to the
Bankruptcy and Insolvency Act (Canada), the Companies' Creditors
Arrangement Act (Canada), the U.S. Federal Bankruptcy Code or any other
federal, provincial, state or foreign bankruptcy, insolvency or analogous
laws, or the issuance of a sequestration order or the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or in receipt of any substantial part of the
property of the Company, and any such decree, order or appointment
continues unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under or
subject to the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada), the U.S. Federal Bankruptcy Code or any
other federal, provincial, state or foreign bankruptcy, insolvency or
analogous laws or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due or the
taking by it of corporate action in furtherance of any of the aforesaid
purposes; or
(7) any other Event of Default provided with respect to Securities of
that series.
47
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) or (7) of
Section 501 with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case, either Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of that
series, may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of all of
the Securities of that series and all interest thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustees if given
by Holders), and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) occurs and is continuing, then the
principal amount of all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustees or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by either Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustees, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with either Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding Securities
of that series (or of all series, as the case may be) and any related
coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal (and premium, if
any) at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is legally
enforceable, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustees hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustees, their agents and counsel; and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Securities
of that series (or of all series, as the case may be) which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Debt and Suits for Enforcement by Trustees.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
then the Company will, upon demand of either Trustee, pay to the U.S. Trustee
for the benefit of the Holders of such Securities and coupons, the whole amount
then due and payable on such Securities and coupons for principal (and premium,
if any) and interest, if any, and interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustees,
their agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, each
of the Trustees, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, either Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as such Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustees May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, each Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether either Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
49
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
such Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to such Trustee and, in the event that such
Trustee shall consent to the making of such payments directly to the Holders, to
pay to such Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of each Trustee, its agents and counsel,
and any other amounts due to such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustees to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustees to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustees May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustees without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by a Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by a Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustees and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustees under Section
607;
Second: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or
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priority of any kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any) and interest, if
any, respectively; and
Third: the balance, if any, to the Person or Persons entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustees of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501, or, in the
case of any Event of Default described in clause (5) or (6) of Section 501,
the Holders of not less than 25% in principal amount of all Outstanding
Securities, shall have made written request to the Trustees to institute
proceedings in respect of such Event of Default in their own names as
Trustees hereunder;
(3) such Holder or Holders have offered to the Trustees reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustees for 60 days after their receipt of such notice,
request and offer of indemnity have failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustees during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series in
the case of any Event of Default described in clause (1), (2), (3), (4) or
(7) of Section 501, or, in the case of any Event of Default described in
clause (5) or (6) of Section 501, by the Holders of a majority or more in
principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501, or of Holders of
all Securities in the case of any Event of Default described in clause (5) or
(6) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4) or (7) of Section 501, or of
Holders of all Securities in the case of any Event of Default described in
clause (5) or (6) of Section 501.
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Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Fourteen) and in
such Security, of the principal of (and premium, if any) and (subject to Section
307) 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) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If either Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustees and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustees and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. 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 306, no right or remedy herein conferred upon or reserved to the
Trustees or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustees or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustees or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustees or by the Holders, as
the case may be.
Section 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less than
a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees, relating to or arising under clause (1), (2),
(3), (4) or (7) of Section 501, and, with respect to all Securities, the Holders
of not less than a majority in principal amount of all Outstanding Securities
shall have the right to direct the
52
time, method and place of conducting any proceeding for any remedy available to
the Trustees, or exercising any trust or power conferred on the Trustees, not
relating to or arising under clause (1), (2), (3), (4) or (7) of Section 501,
provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustees may take any other action deemed proper by the
Trustees which is not inconsistent with such direction, and
(3) the Trustees need not take any action which might involve them in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2), (3), (4) or (7) of Section 501 (or, in the case of
a default described in clause (5) or (6) of Section 501, the Holders of not less
than a majority in principal amount of all Outstanding Securities may waive any
such past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any)
or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustees, but will suffer and permit the execution
of every such power as though no such law had been enacted.
53
Section 515. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against either Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
Trust Indenture Legislation; provided, however, that neither this Section nor
the provisions of Section 315(e) of the Trust Indenture Act shall apply to any
suit instituted by either Trustee or by any Holder or group of Holders holding
more than 10% in principal amount of all Outstanding Securities or by any Holder
of any Security on any suit for the enforcement of the right to receive the
principal of and interest (including any Additional Amounts) on any such
Securities.
Article Six
THE TRUSTEE
Section 601. Notice of Defaults.
Each Trustee shall promptly give the other Trustee notice of any Default or
Event of Default known to it. Within a reasonable time, but no more than the
earlier of 90 days after the occurrence of or 30 days after either Trustee
becomes aware of any Default hereunder with respect to the Securities of any
series, one or both of the Trustees shall transmit in the manner and to the
extent provided in Trust Indenture Legislation, notice of such Default hereunder
known to either Trustee, unless such Default shall have been cured or waived
(and, in the case where such Default shall have been cured, the Trustees shall
notify the Holders in writing of such cure in writing within a reasonable time,
but not exceeding 30 days, after the Trustees have become aware that the Default
has been cured); provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustees shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of each
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series and any related coupons and
so advises the Company in writing; and provided further that in the case of any
Default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 10 days
after the occurrence thereof.
Section 602. Certain Duties and Responsibilities of Trustees.
(a) The Trustees, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform with respect to the Securities of any series such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustees.
(b) In all instances, in the exercise of the powers, rights, duties and
obligations prescribed or conferred by the terms of this Indenture, each Trustee
shall act honestly and in good faith with a view to the best interests of the
Holders and exercise that degree of care, diligence and skill that a reasonably
prudent trustee in respect of indentures for the purpose of issuing corporate
debt obligations would exercise in comparable circumstances.
54
(c) No provision of this Indenture shall be construed to relieve each
Trustee from liability for its own actions or failure to act in accordance with
Subsection 602(b), except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of each Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustees shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustees;
and
(B) in the absence of bad faith on the part of either Trustee,
such Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustees and conforming to
the requirements of this Indenture and Trust Indenture Legislation;
but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Trustees, the Trustees shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(ii) the Trustees shall not be liable for any error of judgment made
in good faith by a Responsible Officer of such Trustee, unless it shall be
proved that the Trustee failed to act in accordance with Subsection 602(b)
in ascertaining the pertinent facts;
(iii) the Trustees shall not be liable with respect to any action
taken or omitted to be taken by them in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of
the Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustees, or exercising any trust or power conferred upon the Trustees
under this Indenture;
(iv) none of the provisions contained in this Indenture shall require
either Trustee to expend or risk their own funds or otherwise incur
personal or any financial liability in the performance of any of their
duties or in the exercise of any of their rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to them under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured
to them; and
(v) whether or not therein expressly so provided, except to the extent
expressly provided herein to the contrary, every provision of this
Indenture relating to the conduct or effecting the liability or affording
protection to the Trustees shall be subject to the provisions of this
Section.
55
Section 603. Certain Rights of Trustees.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustees may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by them to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustees
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, each Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustees may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by them hereunder in good faith and in reliance thereon;
(5) the Trustees shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustees reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by them in compliance with such request
or direction;
(6) the Trustees shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustees, in their discretion, may make such further
inquiry or investigation into such facts or matters as they may see fit,
and, if the Trustees shall determine to make such further inquiry or
investigation, they shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) in an Event of Default, the Trustees' powers shall not be
infringed upon so long as they act in accordance with Subsection 602(b);
(8) the Trustees may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustees shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
them hereunder; and
56
(9) the Trustees shall not be liable for any action taken, suffered or
omitted by them in good faith and believed by them to be authorized or
within the discretion or rights or powers conferred upon them by this
Indenture.
Section 604. Trustees Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for a Trustee's
certificates of authentication, and in any coupons shall be taken as the
statements of the Company, and neither Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustees make no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustees represent that they are duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform their obligations hereunder and that the statements made by the U.S.
Trustee in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. Nothing herein
contained will impose on either Trustee any obligation to see to, or to require
evidence of, the registration or filing (or renewal thereof) of this Indenture
or any supplemental indenture. The Trustees shall not be bound to give notice to
any person of the execution hereof.
Section 605. May Hold Securities.
The Trustees, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustees, in their
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company, including, without limitation, as a creditor of the Company, with
the same rights they would have if they were not Trustees, Authenticating Agent,
Paying Agent, Security Registrar or such other agent. A Trustee that has
resigned or was removed shall remain subject to TIA Section 311(a) to the extent
provided therein.
Section 606. Money Held in Trust.
Money held by the Trustees in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustees shall be under no
liability for interest on any money received by them hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon their request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Indenture (including the
57
reasonable compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their gross negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold them harmless against,
any loss, liability or expense incurred without gross negligence or bad
faith on their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including reasonable
attorneys' fees and other reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustees, to pay or reimburse the Trustees for expenses, disbursements and
advances and to indemnify and hold harmless the Trustees shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustees shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustees as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.
When the Trustees incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or (6), the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Corporate Trustees Required; Eligibility.
(a) There shall be at all times a U.S. Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $25,000,000 and have its Corporate Trust Office
or an agency in The City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of U.S.
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the U.S. Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(b) For so long as required by Trust Indenture Legislation, there shall be
a Canadian Trustee under this Indenture. The Canadian Trustee shall at all times
be a resident or authorized to do business in the Province of Ontario and any
other province in Canada where Holders may be resident from time to time. The
Canadian Trustee represents and warrants that no material conflict of interest
exists in the Canadian Trustee's role as a fiduciary hereunder and agrees that
in the event of a material conflict of interest arising hereafter it will,
within 30 days after ascertaining that it has such material conflict of
interest, either eliminate the same or resign
58
its trust hereunder. If any such material conflict of interests exists or
hereafter shall exist, the validity and enforceability of this Indenture shall
not be affected in any manner whatsoever by reason thereof.
(c) [intentionally omitted]
(d) The Trustees will not be required to give any bond or security in
respect of the execution of the trusts and powers set out in this Indenture or
otherwise in respect of the premises.
(e) Neither Trustee nor any Affiliate of either Trustee shall be appointed
a receiver or receiver and manager or liquidator of all or any part of the
assets or undertaking of the Company.
Section 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of either Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The U.S. 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 610 shall
not have been delivered to such Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) Either Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to such
Trustee and to the Company.
(d) If at any time:
(1) either Trustee shall acquire any conflicting interest as defined
in TIA Section 310(b) and fail to comply with the provisions of TIA Section
310(b)(i), or
(2) either Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) either Trustee shall cease to be eligible under Section 608 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
(4) either Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of its
property shall be appointed or any public officer shall take charge or
control of such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
59
then, in any such case, (i) the Company, by a Board Resolution, may remove such
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of such Trustee
with respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If either Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the U.S. Trustee or the
Canadian Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series) provided, however, that
the Company shall not be required to appoint a successor Trustee to the Canadian
Trustee if the Canadian Trustee resigns or is removed and a Canadian Trustee
under this Indenture is no longer required under Trust Indenture Legislation.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of a
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to the Holders of
Securities of such series in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
(g) If a Canadian Trustee under this Indenture is no longer required by
Trust Indenture Legislation, then the Company by a Board Resolution may remove
the Canadian Trustee.
Section 610. Acceptance of Appointment by Successor.
(a) 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
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retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, 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 the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which either 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 either Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of either Trustee, shall be the successor of such Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this
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Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by a Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of such Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 612. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustees may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustees to
authenticate Securities of such series and the Trustees shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 106. 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 either Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustees, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustees or either Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustees by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustees by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia or the laws of
Canada or any province thereof, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$25,000,000 and subject to supervision or examination by U.S. federal or state
or Canadian federal or provincial authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustees or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustees and to the Company. The Trustees may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustees may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustees agree to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustees
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to either Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
(Certificate of Authentication may be executed by either the U.S. Trustee
or the Canadian Trustee)
Dated: ____________________
Computershare Trust Company, Inc., as U.S. Trustee, certifies that this is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Computershare Trust Company, Inc.,
as U.S. Trustee
By:
--------------------------------------------------
as Authenticating Agent
By:
--------------------------------------------------
Authorized Officer
Dated: ____________________
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Computershare Trust Company of Canada, as Canadian Trustee, certifies that
this is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Computershare Trust Company of Canada,
as Canadian Trustee
By:
-------------------------------------------------
as Authenticating Agent
By:
-------------------------------------------------
Authorized Officer
Section 613. Joint Trustees.
The rights, powers, duties and obligations conferred and imposed upon the
Trustees are conferred and imposed upon and shall be exercised and performed by
the U.S. Trustee and the Canadian Trustee individually, except to the extent the
Trustees are required under Trust Indenture Legislation to perform such acts
jointly, and neither Trustee shall be liable or responsible for the acts or
omissions of the other Trustee. If the Trustees are unable to agree jointly to
act or refrain from acting with respect to any right, power, duty or obligation
conferred jointly upon the Trustees hereunder, the decision of the U.S. Trustee
to act or refrain from acting shall be binding upon the Canadian Trustee.
Unless the context implies or requires otherwise, any written notice,
request, direction, certificate, instruction, opinion or other document (each
such document, a "Writing") delivered pursuant to any provision of this
Indenture to any of the U.S. Trustee or the Canadian Trustee shall be deemed for
all purposes of this Indenture as delivery of such Writing to the Trustee. Each
such trustee in receipt of such Writing shall notify such other trustee of its
receipt of such Writing within two Business Days of such receipt provided,
however, that any failure of such trustee in receipt of such Writing to so
notify such other trustee shall not be deemed as a deficiency in the delivery of
such Writing to the Trustee.
Article Seven
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustees that none of the Company or the
Trustees or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustees shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
Section 702. Reports by Trustees.
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(a) Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustees shall transmit to the Holders of Securities, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 if required by Section 313(a) of the Trust Indenture
Act.
(b) The Trustees shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act and Subsections 52(1), 52(2) and 52(3) of the OBCA.
(c) A copy of such report shall, at the time of such transmission to the
Holders, be filed by the Trustees with the Company (Attention: Senior Vice
President, General Counsel), with each securities exchange upon which any of the
Securities are listed (if so listed) and also with the Commission. The Company
agrees to notify the Trustees when the Securities become listed on any
securities exchange.
Section 703. Reports by the Company.
The Company shall:
(1) file with the Trustees, within 15 days after the Company is
required to file the same (A) with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act, and (B) with the Canadian Securities Authorities, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Canadian Securities
Authorities may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Canadian Securities
Authorities pursuant to applicable Canadian Securities legislation;
(2) file with the Trustees, and the Commission and the Canadian
Securities Authorities, as applicable, in accordance with rules and
regulations prescribed from time to time by the Commission and the Canadian
Securities Authorities, respectively, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations including, without limitation, filing
with the Trustees a list of all information in its possession as to the
names and addresses of all Holders pursuant to TIA Section 312(a) on such
semi-annual dates as may be specified by the Trustees;
(3) notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act or Canadian Securities legislation, or otherwise report on an
annual and quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the Commission,
the Company shall provide the Trustees:
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(a) within 140 days after the end of each fiscal year, the
information required to be contained in annual reports on Form 20-F or
40-F as applicable (or any successor form); and
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form);
which, regardless of applicable requirements, shall, at a minimum,
consist of such information required to be provided in annual and quarterly
reports under the laws of Canada or any province thereof to security
holders of a company with securities listed on The Toronto Stock Exchange,
whether or not the Company has any of its securities so listed;
(4) transmit to all Holders, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, within 30 days after the
filing thereof with the Trustees, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1), (2) and (3) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(5) file with the Exchanges and the Commission the reports created
pursuant to Section 702 hereof.
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not amalgamate or consolidate with or merge into any
other Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, unless:
(1) the Person formed by or continuing from such amalgamation or
consolidation or into which the Company is merged or the Person which
acquires by operation of law or by conveyance or transfer, or which leases,
all or substantially all of the properties and assets of the Company shall
be a corporation, partnership or trust organized and validly existing under
the laws of Canada or any province or territory thereof, the United States
of America or any state thereof or the District of Columbia or, if such
amalgamation, merger, consolidation or other transaction would not impair
the rights of Holders, any other country, and, unless the Company is the
continuing corporation, shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustees, in form
satisfactory to the Trustees, the Company's obligation for the due and
punctual payment of the principal of (and premium, if any), and interest,
if any, on all the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have happened and be continuing; and
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(3) the Company or such Person shall have delivered to the Trustees an
Officers' Certificate and an Opinion of Counsel, each stating that such
amalgamation, consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 802. Successor Person Substituted.
Upon any amalgamation or consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease all or
substantially all of the properties and assets of the Company to any Person in
accordance with Section 801, the successor Person formed by such amalgamation or
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
Article Nine
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustees, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustees, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer
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Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in exchange
for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided that
any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security which is Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(8) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided such action
shall not adversely affect the interests of the Holders of Securities of
any series and any related coupons in any material respect; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; 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; or
(10) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualifications of this
Indenture under any applicable law of the United States and Canada or of
any province or territory thereof to the extent they do not conflict with
the applicable law of the United States heretofore or hereafter enacted; or
(11) to change or eliminate any provisions where such change takes
effect when there are no Securities of any series Outstanding under this
Indenture.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustees, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustees may enter into
an indenture or indentures supplemental
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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 Holder of each
Outstanding Security of such series,
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 1005 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security of such series that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, 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 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting with respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each Outstanding
Security of such series.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
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.
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustees shall be entitled to receive,
in addition to the documents required by Section 102, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. Each
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects such Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Legislation.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of Trust Indenture Legislation as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustees, bear a notation in form approved by the Trustees as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustees and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustees in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustees of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
Article Ten
COVENANTS
Section 1001. 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
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specified as contemplated by Section 301 with respect to any series of
Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 1002. Maintenance of Office or Agency.
(a) If the Securities of a series are issuable as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and, if the
Securities of a series are also issuable as Bearer Securities, where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in Subsection 1002(c).
(b) If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related coupons
may be presented and surrendered for payment; provided, however, that, if the
Securities of that series are listed on any securities exchange located outside
the United States and such securities exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any required
city located outside the United States so long as the Securities of that series
are listed on such exchange and (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where Securities of that series that are
convertible and exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
(c) The Company will give prompt written notice to the Trustees of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustees with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the U.S. Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
(d) Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; 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
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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 maintained for such
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
(e) 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
Trustees of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the Corporate Trust Office in The City of New York, and initially
appoints the U.S. Trustee at its Corporate Trust Office as Paying Agent in such
city and as its agent to receive all such presentations, surrenders, notices and
demands.
(f) Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or
premium, if any) or interest, if any, on Securities of such series so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustees of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, prior to or on each due date of the
principal of (or premium, if any) or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum (in the Currency described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is such Trustee) the Company will promptly notify the Trustees of
its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustees) for any
series of Securities to execute and deliver to the Trustees an instrument in
which such Paying Agent shall agree with the Trustees, subject to the provisions
of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustees notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of (or premium, if any) or interest, if any, on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustees, forthwith pay to the Trustees all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustees all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustees upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustees, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustees or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustees or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustees
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement as to Compliance.
The Company shall deliver to the Trustees, on or before 120 days after the
end of the Company's fiscal year and at any other reasonable time at the request
of a Trustee, an Officers' Certificate stating that a review of the activities
of the Company during such fiscal year has been made under the supervision of
the signing officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such officer signing such certificate, that the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred and is continuing, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or propose to take with respect thereto). The
Company shall deliver to the Trustees upon demand evidence in such form as the
Trustees may require as to compliance by
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the Company with any condition or covenant of the Company set out herein
relating to any action required or permitted to be taken by the Company under
this Indenture or as a result of any obligation imposed by this Indenture. For
purposes of this Section, such compliance shall be determined without regard to
any period of grace or requirement of notice under this Indenture.
Section 1005. Additional Amounts.
If specified pursuant to Section 301, all payments made by or on behalf of
the Company under or with respect to the Securities of any series will be made
free and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other government charge
(including penalties, interest and other liabilities related thereto) imposed or
levied by or on behalf of the Government of Canada or of any province or
territory thereof or by any authority or agency therein or thereof having power
to tax ("Canadian Taxes"), unless the Company is required to withhold or deduct
Canadian Taxes by law or by the interpretation or administration thereof by the
relevant government authority or agency. If the Company is so required to
withhold or deduct any amount for or on account of Canadian Taxes from any
payment made under or with respect to the Securities, the Company will pay as
additional interest such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder after such withholding
or deduction (including with respect to Additional Amounts) will not be less
than the amount the Holder would have received if such Canadian Taxes had not
been withheld or deducted; provided, however, that no Additional Amounts will be
payable with respect to a payment made to a Holder (an "Excluded Holder") in
respect of the beneficial owner thereof (i) with which the Company does not deal
at arm's length (for purposes of the Income Tax Act (Canada)) at the time of the
making of such payment, (ii) which is subject to such Canadian Taxes by reason
of its failure to comply with any certification, identification, information,
documentation or other reporting requirement if compliance is required by law,
regulation, administrative practice or an applicable treaty as a precondition to
exemption from, or a reduction in the rate of deduction or withholding of, such
Canadian Taxes or (iii) which is subject to such Canadian Taxes by reason of its
carrying on business in or being connected with Canada or any province or
territory thereof otherwise than by the mere holding of Securities or the
receipt of payments thereunder. The Company will make such withholding or
deduction and remit the full amount deducted or withheld to the relevant
authority as and when required in accordance with applicable law. The Company
will pay all taxes, interest and other liabilities which arise by virtue of any
failure of the Company to withhold, deduct and remit to the relevant authority
on a timely basis the full amounts required in accordance with applicable law.
The Company will furnish to the Holders, within 30 days after the date the
payment of any Canadian Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Company.
If as a result of any payment by or on behalf of the Company under or with
respect to the Securities of any series, any Holder is required to pay tax under
Part XIII of the Income Tax Act (Canada) or any successor provisions in
circumstances where the Company is not required to make a withholding with
respect to such tax (for instance, in accordance with Section 803 of the
Regulations to the Income Tax Act (Canada)), then the Company will, upon demand
by any such Holder, indemnify such Holder (other than a Holder (i) with which
the Company does not deal at arm's length (for the purposes of the Income Tax
Act (Canada)) at the time of the making of such payment; or (ii) which is
subject to such Canadian Taxes by
74
reason of its failure to comply with any certification, identification,
information, documentation or other reporting requirement if compliance is
required by law, regulation, administrative practice or an applicable treaty as
a precondition to exemption from, or a reduction in the rate of deduction or
withholding of, such Canadian Taxes for the payment of any such taxes, together
with any interest, penalties and expenses in connection therewith). All such
amounts shall be payable by the Company on demand and shall bear interest at the
rate borne by the Securities, calculated from the date incurred by the Holder to
the date paid by the Company. All such amounts shall be Additional Amounts for
the purpose of this Indenture.
Promptly following the Company becoming aware that the Company will be
obligated to pay Additional Amounts with respect to a payment hereunder, the
Company will deliver to the Trustees and to any Paying Agent an Officers'
Certificate stating the fact that such Additional Amounts will be payable and
the amounts so payable. References in this Indenture to interest, principal or
other payments made or to be made by the Company with respect to the Securities
shall be deemed also to refer to the payment of Additional Amounts provided for
in Section 301 that may be payable in respect thereof.
The provisions of this Subsection 1005 shall survive any termination,
defeasance or discharge of this Indenture.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon any property or assets of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 1007. 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 desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 1008. Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 1006 and 1007, or, as specified
pursuant to Section 301(17) for Securities of such series, in any covenants of
the Company added to this Article pursuant to Section 301(16) or Section 301(17)
in connection with Securities of such series, if before the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of
75
any series, by Act of such Holders, waive such compliance in such instance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustees to Holders of Securities of such series in respect of any
such term, provision or condition shall remain in full force and effect.
Article Eleven
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustees.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustees), notify the Trustees of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall deliver to the
Trustees such documentation and records as shall enable the Trustees to select
the Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish to the Trustees an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustees of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustees, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustees
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
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 301.
The Trustees shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
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Section 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price
unless security or indemnity satisfactory to the Company, the Trustees and
any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustees in the name and at the expense of the Company.
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Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with a Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustees if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustees or any Paying Agent any such missing coupon in respect of which
a deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustees so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustees duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and either
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Tax Redemption.
If specified pursuant to Section 301, the Securities of a series will be
subject to redemption at any time, in whole but not in part, at a redemption
price equal to the principal amount thereof together with accrued and unpaid
interest to the date fixed for redemption, upon the giving of a notice as
described below, if (1) the Company determines that (a) as a result of any
change in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of Canada or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding application or interpretation of such laws, regulations or rulings
(including a holding by a court of competent jurisdiction), which change or
amendment is announced or becomes effective on or after a date specified
pursuant to Section 301, if any date is so specified, the Company has or will
become obligated to pay, on the next succeeding date on which interest is due,
Additional Amounts pursuant to Section 1005 or (b) on or after a date specified
pursuant to Section 301, any action has been taken by any taxing authority of,
or any decision has been rendered by a court of competent jurisdiction in,
Canada or any political subdivision or taxing authority thereof or therein,
including any of those actions specified in (a) above, whether or not such
action was taken or decision was rendered with respect to the Company, or any
change, amendment, application or interpretation shall be officially proposed,
which, in any such case, in the Opinion of Counsel to the Company, will result
in the Company becoming obligated to pay, on the next succeeding date on which
interest is due, Additional Amounts with respect to any Security of such series
and (2) in any such case, the Company in its business judgment determines that
such obligation cannot be avoided by the use of reasonable measures available to
the Company; provided, however, that (i) no such notice of redemption may be
given earlier than 90 days prior to the earliest date on which the Company would
be obligated to pay such Additional Amounts were a payment in respect of the
Securities then due, and (ii) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect.
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Article Twelve
SINKING FUNDS
Section 1201. 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 301 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash, the
Company may at its option (1) deliver to the Trustees Outstanding Securities of
a series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and/or (2) receive credit for the principal amount of Securities of such series
which have been previously delivered to the Trustees by the Company or for
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of the same series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, however, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustees at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustees an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (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.
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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 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustees shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustees or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustees, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustees or any Paying Agent will be reimbursed by
the Company) not in excess of the principal amount thereof.
Article Thirteen
REPAYMENT AT OPTION OF HOLDERS
Section 1301. 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 301 for
Securities of any series) in accordance with this Article.
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Section 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with a Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
Section 1304. 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
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Bearer Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustees if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustees or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and either Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
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Article Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, the provisions of this Article shall apply to each series of
Securities, and the Company may, at its option, effect defeasance (as defined
below) of the Securities of or within a series under Section 1402, or covenant
defeasance (as defined below) of or within a series under Section 1403 in
accordance with the terms of such Securities and in accordance with this
Article.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 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 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustees, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 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 304,
305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts,
if any, on such Securities as contemplated by Section 1005, (C) the rights,
powers, trusts, duties and immunities of the Trustees hereunder and (D) this
Article. Subject to compliance with this Article, the Company may exercise its
option under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any related coupons.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
released from its obligations under Sections 1006 and 1007, and, if specified
pursuant to Section 301, 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 1404 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
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be deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any related coupons, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(4) or
Section 501(7) or otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any related coupons
shall be unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1402
or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with either Trustee (or another trustee satisfying the
requirements of Section 608 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) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of and premium, if any, and interest, if any, under such
Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustees, to pay and discharge, and which shall be
applied by the Trustees (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, (ii) any mandatory sinking fund payments
or analogous payments applicable to such Outstanding Securities and any
related coupons on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and any
related coupons, and (iii) all amounts due the Trustees under Section 607;
provided that the Trustees shall have been irrevocably instructed to apply
such money or the proceeds of such Government Obligations to said payments
with respect to such Securities and any related coupons. Before such a
deposit, the Company may give to the Trustees, in accordance with Section
1102 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.
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(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (5) and (6) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election under Section 1402, the Company shall
have delivered to the Trustees an Opinion of Counsel in the United States
stating that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of
execution of this Indenture, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(5) In the case of an election under Section 1403, the Company shall
have delivered to the Trustees an Opinion of Counsel in the United States
to the effect that the Holders of such Outstanding Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustees an Opinion of
Counsel in Canada or a ruling from Canada Customs and Revenue Agency to the
effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for Canadian federal, provincial or territorial income
tax or other tax purposes as a result of such defeasance or covenant
defeasance, as applicable, and will be subject to Canadian federal or
provincial income tax and other tax on the same amounts, in the same manner
and at the same times as would have been the case had such defeasance or
covenant defeasance, as applicable, not occurred (and for the purposes of
such opinion, such Canadian counsel shall assume that Holders of the
Securities include Holders who are not resident in Canada).
(7) The Company is not an "insolvent person" within the meaning of the
Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(8) No Event of Default or Default with respect to such Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (5) and (6) of Section 501 are concerned, at any time
during the period ending on the 91st day
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after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(9) 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 301.
(10) The Company shall have delivered to the Trustees an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for, relating to either the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the case may be),
have been complied with.
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (or other property as may be provided pursuant to
Section 301) (including the proceeds thereof) deposited with a Trustee (or other
qualifying trustee, collectively for purposes of this Section, the "Trustee")
pursuant to Section 1404 in respect of such Outstanding Securities and any
related coupons shall be held in trust and applied by such Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as such Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(1) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(1) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1404(1) has been
made, the indebtedness represented by such Security and any related coupons
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if
any, on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify such Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 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.
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Anything in this Article to the contrary notwithstanding, such Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to such Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
Section 1406. Reinstatement.
If a Trustee or any Paying Agent is unable to apply any money in accordance
with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as such Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 1405; 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 such Trustee or Paying Agent.
Article Fifteen
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustees may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in The City of New York, in Toronto or in London as the
Trustees shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustees to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustees shall not have made the first publication of
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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, in Toronto or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in paragraph (a) of this
Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder of Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustees and their counsel and any representatives of the Company and its
counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
who have casted their votes; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture
89
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section, if any action is
to be taken at a meeting of Holders of Securities of any series with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action that this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all Outstanding
Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustees may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxyholder shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxyholders, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustees shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
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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.
(c) 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 101); provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or a proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the 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 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustees to be
preserved by the Trustees, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BIOVAIL CORPORATION
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
COMPUTERSHARE TRUST COMPANY, INC.,
as U.S. Trustee
By:/s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: President
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
COMPUTERSHARE TRUST COMPANY OF CANADA,
as Canadian Trustee
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
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
BIOVAIL CORPORATION
% Notes due
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by any person(s) that is not a citizen or resident of the United States; a
corporation or partnership (including any entity treated as a corporation or
partnership for United States Federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia unless, in the case of a partnership, Treasury Regulations provide
otherwise; any estate whose income is subject to United States Federal income
tax regardless of its source or; a trust if (A) a United States court can
exercise primary supervision over the trust's administration and one of 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)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise Biovail Corporation 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.
A-1-1
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S.$ of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a permanent global
security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, applicable]
[Name of Person Making Certification]
By:
--------------------------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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
BIOVAIL CORPORATION
% Notes due
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 owned by any person(s) that is not a citizen
or resident of the United States; a corporation or partnership (including any
entity treated as a corporation or partnership for United States Federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia unless, in the case of a
partnership, Treasury Regulations provide otherwise; any estate whose income is
subject to United States Federal income tax regardless of its source or; a trust
if (A) a United States court can exercise primary supervision over the trust's
administration and one of 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 U.S.
Treasury Regulation Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise Biovail Corporation 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.
A-2-1
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, applicable]
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear System]
[CLEARSTREAM BANKING]
By:
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Name:
Title:
A-2-2