EXHIBIT 7.2
Intrawest Corporation,
Issuer,
JPMorgan Chase Bank,
U.S. Trustee,
And
CIBC Mellon Trust Company,
Canadian Trustee
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Indenture
Dated as of September 18, 2002
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10.50% Senior Notes due February 1, 2010
INDENTURE dated as of September 18, 2002 between Intrawest
Corporation, a Canadian corporation, as issuer (the "Company"), and JPMorgan
Chase Bank, as U.S. trustee (the "U.S. Trustee"), and CIBC Mellon Trust Company,
as Canadian trustee (the "Canadian Trustee" and, together with the U.S. Trustee,
the "Trustees").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of and
issuance of its 10.50% Senior Notes due February 1, 2010 and 10.50% Senior
Exchange Notes due February 1, 2010 of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture;
WHEREAS, this Indenture is subject to and shall be governed by
applicable provisions of Trust Indenture Legislation;
WHEREAS, upon the effectiveness of the Exchange Offer Registration
Statement (as defined herein) or the Shelf Registration Statement (as defined
herein), as the case may be, this Indenture will be subject to, and shall be
governed by, the provisions of the Trust Indenture Act that are required or
deemed to be part of and to govern indentures qualified under the Trust
Indenture Act; and
WHEREAS, all things necessary have been done to make the Securities,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, each in accordance with their
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, 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:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) the words "include", "included" and "including" as used herein
shall be deemed in each case to be followed by the phrase "without
limitation"; and
(f) the words "amendment" or "refinancing" as used herein shall be
deemed in each case to refer to any amendment, renewal, extension,
substitution, refinancing, restructuring, restatement, replacement,
supplement or other modification, as the case may be, of any instrument or
agreement; the words "amended" or "refinanced" shall have a correlative
meaning.
"Additional Securities" means up to an unlimited additional aggregate
principal amount of Securities that may be issued under a supplemental indenture
or Officers' Certificate after the date that the Securities are first issued by
the Company and authenticated by a Trustee under this Indenture, which shall
rank pari passu with the Securities initially issued in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
such Additional Securities or except for the first payment of interest following
the issue date of such Additional Securities).
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any members of, or participants in, the Depositary.
"Applicable Procedure" means applicable procedures of the Depositary,
Euroclear System or Clearstream Banking, Societe Anonyme, as the case may be.
"Asset Disposition" by the Company or any Restricted Subsidiary means any
transfer, conveyance, sale, lease or other disposition by the Company or any
such Restricted Subsidiary (including a consolidation or merger or other sale of
a Restricted Subsidiary with, into or to a Person other than the Company in a
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary), of (i) shares of Capital Stock or other ownership interests of a
Restricted Subsidiary, (ii) substantially all of the assets of the Company or
any Restricted Subsidiary representing a significant division or line of
business constituting in excess of 10% of the Company's consolidated assets or
consolidated net income at the time of determination or (iii) other assets or
rights of the Company or any Restricted Subsidiary outside of the ordinary
course of business, provided in each of the foregoing instances that the
aggregate consideration for such transfer, conveyance, sale, lease or other
disposition is equal to Cdn.$25 million or
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more. Notwithstanding the foregoing, "Asset Disposition" shall be deemed not to
include (i) any transfer, conveyance, sale, lease or other disposition of
properties and assets that is governed by the provisions under Article Eight,
(ii) any transfer, conveyance, sale, lease or other disposition in any one
transaction or series of related transactions between the Company and any
Restricted Subsidiary or between any Restricted Subsidiaries, (iii) a
simultaneous exchange by the Company or any Restricted Subsidiary of real
property, fixtures, buildings or equipment of a resort (collectively, "resort
assets") for other resort assets of similar type, provided that the resort
assets received by the Company or such Restricted Subsidiary have at least
substantially equal fair market value to the Company or such Restricted
Subsidiary determined in good faith by the Board of Directors, whose
determination shall be evidenced by a Board Resolution and (iv) the designation
of any Subsidiary as an Unrestricted Subsidiary or the contribution to the
capital of any Unrestricted Subsidiary, in either case in compliance with the
applicable provisions of this Indenture.
"Bankruptcy Laws" means the Bankruptcy and Insolvency Act (Canada) or any
other Canadian federal or provincial law, the bankruptcy laws of the United
States, any state or territory thereof or the District of Columbia, and the law
of any other jurisdiction relating to bankruptcy, insolvency, winding up,
liquidation, moratorium, reorganization or relief of debtors.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Corporate
Secretary or any 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.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York or
Vancouver, or such other city in which the Corporate Trust Office of either of
the Trustees is located, are authorized or obligated by law, regulation or
executive order to close.
"Canadian Dollars" and "Cdn.$" each mean the legal currency of Canada.
"Canadian Trustee" means the Person named as the "Canadian Trustee" in the
first paragraph of this Indenture, until a successor shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Canadian Trustee" shall mean such successor.
"Capital Lease Obligation" of any Person means the obligation of such
Person to pay rent or other payment amounts under a lease of (or other Debt
arrangement conveying the right to use) real or personal property which, in
accordance with generally accepted accounting principles, is required to be
classified and accounted for as a capital lease or a liability and would appear
as a dollar amount on the face of a consolidated balance sheet of such Person.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
any other equity participations, including partnership interests, whether
general or limited, of such Person, but excludes any debt securities
exchangeable or convertible into equity of such Person.
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"Commission" means the 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 Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
Common Stock of the Company does not include the NRP Shares.
"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, as
the case may be, signed in the name of the Company by any two of the following
officers: its Chairman, any Vice Chairman, its President, any Executive Vice
President, any Senior Vice President, any Vice President, or its Corporate
Secretary, and delivered to the Trustees.
"consolidated" means with respect to any amount relating to any Person,
that such amount reflects the consolidation of the accounts of the Restricted
Subsidiaries of such Person with those of such Person, if and to the extent the
accounts of each such Restricted Subsidiary would normally be consolidated with
those of such Person, all in accordance with generally accepted accounting
principles; provided, however, that "consolidated" will not reflect the
consolidation of the accounts of any Unrestricted Subsidiary of such Person.
"Consolidated Cash Flow Available for Fixed Charges" means, for any
period, the consolidated revenues less the consolidated expenses of the Company
for such period, plus (i) Consolidated Net Interest Expense for such period,
plus (ii) capitalized interest which is charged through cost of goods sold in
determining the consolidated revenues less the consolidated expenses of the
Company for such period, plus (iii) Consolidated Income Tax Expense of the
Company for such period, plus (iv) consolidated depreciation expense of the
Company for such period, plus (v) consolidated amortization expense of the
Company for such period, all as determined in accordance with generally accepted
accounting principles; provided, however, that to the extent taken into account
in determining such amount there shall be excluded therefrom all extraordinary
items.
"Consolidated Cash Flow Coverage Ratio" for purposes of the calculation of
the Debt Incurrence Provisions means, as of the date such calculation is being
made, the ratio of (i) Consolidated Cash Flow Available for Fixed Charges for
the period of the most recently completed four consecutive fiscal quarters for
which quarterly or annual financial statements of the Company are available to
(ii) Consolidated Fixed Charges for such period; provided, however, that
Consolidated Fixed Charges shall be adjusted to give effect on a pro forma basis
to any Debt that has been Incurred by the Company or any Restricted Subsidiary
and any Preferred Shares that have been issued by any Restricted Subsidiary
during or after such period that remain
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outstanding and to the Debt that is proposed to be Incurred or the Preferred
Shares that are proposed to be issued, as the case may be, in respect of which
such calculation is being made, as if in each case such Debt had been Incurred
or Preferred Shares had been issued on the first day of such period and as if
any Debt or Preferred Shares that are no longer or will no longer be outstanding
as a result of the Incurrence of such Debt or issuance of such Preferred Shares
had not been outstanding as of the first day of such period; provided, however,
that in making such computation, the Consolidated Interest Expense of the
Company and its Restricted Subsidiaries attributable to interest on any Debt or
dividends on any Preferred Shares bearing a floating interest or dividend rate
shall be computed on a pro forma basis as if the rate in effect on the date of
such calculation had been the applicable rate for the entire period; and
provided, further that, in the event the Company or any of its Restricted
Subsidiaries had made acquisitions or dispositions of assets (including
acquisitions of other Persons by merger, consolidation or purchase of Capital
Stock) during or after such period, such calculation shall be made on a pro
forma basis as if such acquisitions or dispositions had taken place on the first
day of such period; and provided, further that, such computation shall not be
adjusted with regard to the Limited Recourse Notes.
"Consolidated Debt" means, as at any date, consolidated Debt of the
Company as at such date determined in accordance with generally accepted
accounting principles.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Net Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles, excluding any effects of extraordinary items.
"Consolidated Net Debt" means, as at any date, Consolidated Debt as at
such date less consolidated cash and cash equivalents of the Company as at such
date determined in accordance with generally accepted accounting principles.
"Consolidated Net Debt Ratio" for purposes of the calculation of the Debt
Incurrence Provisions means, as at the date such calculation is being made, the
ratio of (i) the sum of Consolidated Net Debt and Consolidated Preferred Share
Amounts as of the last day of the period of the most recently completed four
consecutive fiscal quarters for which quarterly or annual financial statements
of the Company are available to (ii) Consolidated Net Tangible Assets as of the
last day of such period; provided that, the foregoing calculations shall be
adjusted to give effect on a pro forma basis to any Debt that has been Incurred
by the Company or any Restricted Subsidiary and any Preferred Shares that have
been issued by any Restricted Subsidiary since the end of such period that
remain outstanding and to the Debt that is proposed to be Incurred or the
Preferred Shares that are proposed to be issued, as the case may be, in respect
of which such calculation is being made, as if in each case such Debt had been
Incurred or Preferred Shares had been issued as of the last day of such period
and as if any Debt or
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Preferred Shares that are no longer or will no longer be outstanding as a result
of the Incurrence of such Debt or issuance of such Preferred Shares had not been
outstanding as of the last day of such period; provided, further that, in the
event the Company or any of its Restricted Subsidiaries had made acquisitions or
dispositions of assets (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) since the end of such period, such
calculation shall be made on a pro forma basis as if such acquisitions or
dispositions had taken place on the last day of such period; and provided,
further that, such calculation shall be made without regard to the Limited
Recourse Notes or the assets to which the Limited Recourse Notes relate.
"Consolidated Net Income" for any period means the consolidated net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary in a pooling-of-interests transaction for any period prior to the
date of such transaction, (b) the net income (or loss) of any Person that is not
a Restricted Subsidiary except to the extent of the amount of dividends or other
distributions actually paid to the Company or a Restricted Subsidiary by such
Person during such period, (c) gains or losses on Asset Dispositions, (d) all
extraordinary gains and extraordinary losses, (e) non-cash gains or losses
resulting from fluctuations in currency exchange rates and (f) the tax effect of
any of the items described in clauses (a) through (e) above; provided, further
that, for purposes of any determination pursuant to the provisions described
under Section 1010, there shall further be excluded therefrom the net income
(but not net loss) of any Restricted Subsidiary that is subject to a restriction
which prevents the payment of dividends or the making of distributions to the
Company or another Restricted Subsidiary to the extent of such restriction.
"Consolidated Net Interest Expense" means, for any period, the
consolidated interest expenses of the Company for such period determined in
accordance with generally accepted accounting principles, including without
limitation or duplication (or, to the extent not so included, with the addition
of), (i) the portion of any Capital Lease Obligation included in Consolidated
Debt that is allocable to interest expense for such period and (ii) charges paid
or accrued during such period to the holders of any instruments considered to be
quasi-equity in accordance with generally accepted accounting principles (other
than Preferred Shares) issued by the Company or a Subsidiary to a Person other
than the Company or a Subsidiary where the payment of such charges has not been
deferred by the issuers of such instruments to a date subsequent to the end of
such period, minus consolidated interest income of the Company for such period
determined in accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means, as at any date, the book value
as at such date of all of the property, both real and personal, of the Company
determined on a consolidated basis in accordance with generally accepted
accounting principles, excluding (i) goodwill, (ii) unamortized Debt financing
discount and expenses and (iii) cash and cash equivalents.
"Consolidated Net Worth" of any Person means, as at any date, the
consolidated shareholders' equity of such Person as at such date determined in
accordance with generally accepted accounting principles.
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"Consolidated Preferred Share Amounts" means, as at any date, the amount
of all Preferred Shares of all Restricted Subsidiaries determined in accordance
with generally accepted accounting principles and which would appear as a dollar
amount on the face of the consolidated balance sheet of the Company as at such
date.
"Corporate Trust Office" means the office of the U.S. Trustee or the
Canadian Trustee, as applicable, at which at any particular time its corporate
trust business shall be principally administered and any additional office it
may designate in writing to the Company. At the date of this Indenture, the
Corporate Trust Office of the U.S. Trustee is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ and the U.S. Trustee has designated the
following additional addresses: JPMorgan Chase Bank, c/o ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and JPMorgan Chase Bank, Attn: ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Corporate Trust
Office of the Canadian Trustee is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
"DBRS" means Dominion Bond Rating Service Limited and its successors.
"Debt" means (without duplication), with respect to any Person, (i) every
obligation of such Person for money borrowed by such Person, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of any business, property or other assets, (iii) every Capital Lease Obligation
of such Person and (iv) every obligation of the type referred to in clauses (i)
to (iii) of another Person the payment of which such Person has guaranteed or
for which such Person is responsible or liable, in each case determined in
accordance with generally accepted accounting principles, provided, however,
that (v) any debt in respect of any co-ownership arrangement, joint venture,
partnership, limited liability company or other similar entity which is
guaranteed by such Person shall only be considered to be Debt to the extent of
such Person's interest in such co-ownership arrangement, joint venture,
partnership, limited liability company or other similar entity until such time
as the guarantee is called upon in which case the amount demanded under the
guarantee shall be considered to be Debt at the time of the demand, unless such
co-ownership arrangement, joint venture, partnership, limited liability company
or other similar entity would be accounted for on a fully consolidated basis in
the consolidated financial statements of the Company in accordance with
generally accepted accounting principles and (vi) there shall be excluded
therefrom all IPP Excluded Debt.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" or "DTC" means The Depository Trust Company, New York, New
York, its successors or any other depository appointed in its stead in
accordance with Section 306.
"Dollars", "United States Dollars", "U.S. Dollars" or "U.S.$" each means
the legal currency of the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
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"Exchange Offer" means the offer by the Company to the Holders of the
Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Company's 10.50% Senior Exchange Notes due
February 1, 2010 issued in exchange for the Initial Securities (including any
Additional Securities) in accordance with the Exchange Offer, as provided for in
the Registration Rights Agreement and this Indenture containing terms identical
in all material respects to the Initial Securities (except that such Exchange
Securities shall not contain terms with respect to transfer restrictions).
"generally accepted accounting principles" means generally accepted
accounting principles in effect in Canada as of the date of this Indenture.
"Gradation" means a gradation within a Rating Category or a change to
another Rating Category, which shall include (i) "+" and "-", in the case of
S&P's current Rating Categories (e.g., a decline from BB+ to BB would constitute
a decrease of one gradation); (ii) "1", "2" and "3", in the case of Moody's
current Rating Categories (e.g., a decline of B1 to B2 would constitute a
decrease of one gradation); (iii) "(high)" and "(low)", in the case of DBRS's
current Rating Categories (e.g., a decline from BB (high) to BB would constitute
a decrease of one gradation); or (iv) the equivalent in respect of successor
Rating Categories of S&P, Moody's and DBRS, or Rating Categories used by Rating
Agencies other than S&P, Moody's or DBRS.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing any Debt of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any Person,
the first (and only the first) to occur of the creation, issuance, incurrence
(by conversion, exchange or otherwise), assumption or Guarantee by such Person,
or such Person otherwise becoming liable, in respect of such Debt or other
obligation including by acquisition of Restricted Subsidiaries or the recording,
as required pursuant to generally accepted accounting principles, of such Debt
or
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other obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurable" and "Incurring" shall have meanings correlative to the
foregoing).
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) 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.
"Initial Securities" means the Company's 10.50% Senior Notes due February
1, 2010 issued pursuant to this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution (by means of transfers of cash
or other property to others or payments for property or services for the account
or use of others, or otherwise) to, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Debt issued by, any
other Person, including any payment on a Guarantee of any obligation of such
other Person, but shall not include trade accounts receivable in the ordinary
course of business on credit terms made generally available to the customers of
such Person. For purposes of compliance with any provision of this Indenture,
the amount of any Investment consisting of the transfer of property shall be the
book value of such property.
"Investment Company Act" means the United States Investment Company Act of
1940, as amended.
"Investment Grade" means BBB- or above, in the case of S&P (or its
equivalent rating under any successor Rating Categories of S&P), Baa3 or above,
in the case of Moody's (or its equivalent rating under any successor Rating
Categories of Moody's), and the equivalent rating in respect of the Rating
Categories of any Rating Agencies substituted for S&P or Moody's, provided,
however, that if the Notes are not rated by either S&P or Moody's at the time of
determination, then "Investment Grade" shall mean A or above, in the case of
DBRS (or its equivalent rating under any successor Rating Categories of DBRS),
and the equivalent rating in respect of the Rating Categories of any Rating
Agencies substituted for DBRS.
"IPP Excluded Debt" means up to Cdn.$41 million of liabilities of the
Company and its Subsidiaries under the IPP Guarantees, provided that in the
event there is any demand made against the Company or any Subsidiary under any
of the IPP Guarantees, the IPP Excluded Debt shall thereafter be permanently
reduced to Cdn.$0.
"IPP Guarantees" means all liabilities of the Company or any Subsidiary
from time to time in respect of obligations of Intracorp Properties Partnership
or Intracorp Properties Partnership U.S. or any corporation, partnership or
other entity in which either of them have any interest, arising pursuant to the
Asset Purchase Agreement dated August 3, 1994 between the Company and Intracorp
Properties Partnership or the Partnership Interests Purchase Agreement made the
4th day of August, 1994 between Intrawest U.S.A., Inc. and IntraCo Holdings
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Partnership and executed by Intracorp Properties Partnership U.S., in each case
as amended and in effect from time to time.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment for security, deposit arrangement,
security interest, lien, charge, encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation,
any title retention agreement having substantially the same economic effect as
any of the foregoing).
"Limited Recourse Notes" means certain limited recourse notes of Copper
Mountain, Inc. in the original amount of U.S.$15.8 million that are secured by
and provide for recourse only to certain leasehold interests in condominium
projects at Copper Mountain in Colorado which are to be sold to tenants and
under which amounts equivalent to rent received are payable as interest and the
net proceeds from the sale of units and commercial space are payable as
principal.
"Maturity" means, with respect to any Security, the date on which the
principal of such Security becomes due and payable as provided in such Security
or this Indenture, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Available Proceeds" from any Asset Disposition means cash or readily
marketable cash equivalents received therefrom by the Company or any Restricted
Subsidiary, net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred and all federal, state, provincial, foreign
and local taxes required to be paid or accrued as a liability by the Company or
such Restricted Subsidiary as a consequence of such Asset Disposition, (ii) all
payments made by the Company or any Restricted Subsidiary on any Debt which are
required in accordance with the terms of any undertaking, agreement or
instrument in respect of, or Lien securing, such Debt as a result of such Asset
Disposition, (iii) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries as a result of such Asset
Disposition and (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve in accordance with
generally accepted accounting principles against any liabilities associated with
such Asset Disposition and retained by the Company or any Restricted Subsidiary,
as the case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, in each case
as determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a Board Resolution, provided, however, that any reduction in such
reserve within twelve months following the consummation of such Asset
Disposition will be treated for all purposes of this Indenture and the
Securities as a new Asset Disposition at the time of such reduction with Net
Available Proceeds equal to the amount of such reduction.
"Non-Recourse Debt" means Debt or that portion of Debt as to which neither
the Company nor any of the Restricted Subsidiaries (i) is directly or indirectly
liable (including by
11
recourse to their assets, other than the assets subject to a Lien securing such
Debt) or (ii) constitutes the lender.
"NRP Shares" means the Non-Resort Preferred Shares of the Company.
"Obligations" means any principal (including reimbursement obligations and
guarantees), premium, if any, interest (including interest accruing on or after
the filing of, or which would have accrued but for the filing of, any petition
in bankruptcy or for reorganization relating to the Company whether or not a
claim for post-filing interest is allowed in such proceedings), penalties, fees,
expenses, indemnifications, reimbursements, claims for rescission, damages,
gross-up payments and other liabilities payable under the documentation
governing any Indebtedness or otherwise.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustees, at least 15 Business Days (or such
shorter period as is acceptable to the Trustees) prior to the mailing of the
Offer of the Company's obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Company or, at the Company's request, by the Trustees, in
the name and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Restricted Subsidiaries which the
Company in good faith believes will enable such Holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum will include
(i) the most recent annual and quarterly financial statements and "Management's
Discussion and Analysis" contained in the documents required to be filed with
the Trustees pursuant to this Indenture (which requirements may be satisfied by
delivery of such documents together with the Offer), (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of such financial statements referred to in clause (i) (including a
description of the events requiring the Company to make the Offer to Purchase),
(iii) if applicable, appropriate pro forma financial information concerning the
Offer to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to be
included therein. The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
12
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the
Offer to Purchase (including, if less than 100%, the manner by which
such has been determined pursuant to the Section hereof requiring
the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
U.S.$1,000 aggregate principal amount of Securities accepted for
payment (as specified pursuant to this Indenture) (the "Purchase
Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any
portion of a Security tendered must be tendered in an integral
multiple of U.S.$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall
cease to accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company
or the Trustees so require, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Trustees, duly executed by the Holder thereof or his
attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or their Paying
Agent) receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Security the Holder tendered, the certificate number of the Security
the Holder tendered and a statement that such Holder is withdrawing
all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Securities and (b) if Securities in an aggregate
principal amount in excess of the Purchase Amount are tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
13
purchase Securities having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as
may be deemed appropriate so that only Securities in denominations
of U.S.$1,000 or integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute, and a Trustee
shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased
portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase. Notwithstanding anything to the contrary, any
Offer to Purchase shall be governed by and effected pursuant to the rules and
procedures of DTC, so long as the Securities are in the form of a Global
Security.
"Officers' Certificate" means a certificate signed by any two of the
following officers of the Company: its Chairman, any Vice Chairman, its
President, any Executive Vice President, any Senior Vice President, any Vice
President, or its Corporate Secretary, and delivered to the Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustees.
"Outstanding" when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore cancelled by a Trustee or delivered to a
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment, redemption
or purchase 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; 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;
(c) Securities, except to the extent provided in Sections 402 and
403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) Securities 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
14
them that such Securities are held by a bona fide purchaser in whose hands
the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustees shall be protected in relying upon any such
request, demand, direction, 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 by certificate in form satisfactory to 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 authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Permitted Interest Rate or Currency Protection Agreement" of any Person
means any interest rate or currency protection agreement entered into with one
or more financial institutions in the ordinary course of business that is
designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which has a notional
amount no greater than the payments due with respect to the Debt being hedged
thereby.
"Permitted Investment" means any Investment in any Affiliate or Related
Person (or any Person that would become an Affiliate or Related Person as a
result of such Investment) that is engaged to a significant extent in a business
which is conducted by the Company, or which the Company has announced an
intention to conduct, on the date of this Indenture or a reasonable expansion or
extension thereof or a business ancillary or related thereto or supportive
thereof.
"Permitted Liens" means, as of any particular time, any one or more of the
following:
(i) Liens existing on the date on which the Securities are
originally issued or provided for under the terms of agreements existing
on such date;
(ii) Liens on property or assets acquired by the Company from
another Person which are existing at the time of such acquisition,
provided that such Liens (a) were not incurred in contemplation of the
acquisition of such property or assets and (b) are applicable only to such
property or assets;
(iii) Liens on any property or assets of the Company existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) to secure or securing the payment of all or any part of the
purchase price, cost of improvement or construction cost thereof or
securing any indebtedness Incurred prior to, at the time of or within 120
days after, the acquisition of such property or assets or the completion
of any such improvement or construction, whichever is later, for the
purpose of financing all or any part of the purchase price, cost of
improvement or construction cost thereof or to
15
secure or securing the repayment of money borrowed to pay in whole or any
part of such purchase price, cost of improvement or construction cost of
any vendor's privilege or lien on such property securing all or any part
of such purchase price, cost of improvement or construction cost,
including title retention agreements and leases in the nature of title
retention agreements (provided such Liens are limited to such property or
assets and to improvements on such property);
(iv) any Lien securing the Securities;
(v) Liens in favor of the Company or a Restricted Subsidiary;
(vi) Liens to secure Debt that is permitted to be Incurred under
clause (e), (f), (g) or (i) under Section 1008 hereof;
(vii) any interest or title of a lessor to any property subject to a
Capital Lease Obligation which is permitted to be Incurred under this
Indenture;
(viii) any right of set-off, refund or charge-back available to any
bank or other financial institution;
(ix) Liens to secure Permitted Interest Rate or Currency Protection
Agreements;
(x) Liens to secure Debt Incurred to renew, extend, refinance or
refund, in whole or in part, Debt secured by any Lien referred to in the
foregoing clauses (iv), (v), (vi), (viii) and (ix) so long as such Lien
does not extend to any other property and the principal amount of the Debt
so secured does not exceed the principal amount of Debt so renewed,
extended, refinanced or refunded; or
(xi) Liens on Non-Resort Assets (as defined in the provisions of the
NRP Shares).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"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 308 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same Debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Shares" of any Person means shares of such Person of any class
or classes (however designated) that rank prior, as to payment of dividends or
as to distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of such Person, to shares of any other class of such
Person.
16
"Project" means a residential or resort development project (or, in the
case of any such project which is being developed in phases, any particular
phase thereof), including for greater certainty houses, townhomes, multiple unit
residences, timeshare buildings, strata-titled hotels and mixed-use buildings
which are comprised of one or more of the foregoing types of facilities and
commercial space, together, in each case, with ancillary amenities and
facilities.
"Qualifying Construction Loan" means a loan (i) with a term to maturity of
18 months or less, (ii) the proceeds of which are used to finance the cost of
development or construction of a Qualifying Project and (iii) which is advanced
by a financial institution dealing with the Company at arm's length.
"Qualifying Project" means a Project in respect of which (i) the aggregate
estimated development or construction costs do not exceed Cdn.$7,500,000 in the
case of a Project in Canada or U.S.$7,500,000 in the case of a Project outside
Canada, provided that the aggregate estimated development or construction costs
for all Projects permitted pursuant to this clause (i) at any time shall not
exceed Cdn.$40,000,000, or (ii) substantially all space other than commercial
space and common areas is being developed for sale and purchase and sale
agreements acceptable to the financial institution providing the applicable
Qualifying Construction Loan have been entered into representing aggregate sales
revenues equal to at least 50% of the aggregate estimated development or
construction costs of such Project.
"Rating Agencies" means (i) S&P, Moody's and DBRS or (ii) if S&P, Moody's
and DBRS or any of them are not making ratings of the Securities publicly
available, a nationally recognized U.S. rating agency or agencies, as the case
may be, selected by the Company, which will be substituted for S&P or Moody's or
both, as the case may be, or a nationally recognized Canadian rating agency or
agencies, as the case may be, selected by the Company, which will be substituted
for DBRS.
"Rating Categories" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC,
C and D (or equivalent successor categories); (ii) with respect to Moody's, any
of the following categories (any of which may include a "1," "2" or "3"): Aaa,
Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); (iii)
with respect to DBRS, any of the following categories (any of which may include
a "(high)" or "(low)"): AAA, AA, A, BBB, BB, B, CCC, CC, and C; and (iv) the
equivalent of any such categories of S&P, Moody's or DBRS used by another Rating
Agency, if applicable.
"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by the Board of Directors pursuant to
this Indenture.
17
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Default" has the meaning set forth in the Registration
Rights Agreement.
"Registration Default Period" has the meaning set forth in Section 203.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement between the Company and the Purchasers named therein dated as of
September 18, 2002 relating to the Securities.
"Registration Statement" means the Registration Statement as defined in
the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Related Person" of any Person means any other Person directly or
indirectly owning (i) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (ii) 5% or more of the combined voting power of the
Voting Stock of such Person.
"Responsible Officer", when used with respect to the Trustees, means, to
the extent such offices exist and are filled, the chairman or any vice-chairman
of the board of directors, the chairman or vice-chairman of the executive
committee of the board of directors, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller and any assistant controller or any other officer or authorized
agent or signatory 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.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and its successors.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which any lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person for a
term, including renewal terms at the option of the lessor, of three years or
more and which property or asset has been or is being sold or transferred by
such Person more than 270 days after the acquisition thereof or the completion
of construction or commencement of operation thereof to such lender or investor
or to any Person
18
to whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset. The term of such arrangement shall be deemed
to expire on the date of the last payment of rent or any other amount due under
such arrangement prior to the first day on which such arrangement may be
terminated by the lessee without payment of a penalty.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Security" and "Securities" means any Securities authenticated and
delivered under this Indenture and includes any Additional Securities that may
be issued under a supplemental indenture or Officers' Certificate. For all
purposes of this Indenture, the term "Securities" shall include any Exchange
Securities to be issued and exchanged for any Initial Securities in accordance
with the Exchange Offer as provided for in the Registration Rights Agreement and
this Indenture and, for purposes of this Indenture, all Initial Securities, any
Additional Securities and Exchange Securities shall vote together as one series
of Securities under this Indenture.
"Series A Indenture" means the Indenture dated as of January 19, 2000, as
supplemented by a Supplemental Indenture dated March 9, 2001 among the Company,
CIBC Mellon Trust Company and The Chase Manhattan Bank, providing for the
issuance of the Series A Notes in the aggregate principal amount of up to
$300,000,000, as such may be amended and supplemented from time to time.
"Series A Issue Date" means the date on which the Series A Notes were
originally issued under the Series A Indenture.
"Series A Notes" means the Company's Series A 10.50% Senior Notes due 2010
issued pursuant to the Series A Indenture, as such may be amended or
supplemented from time to time.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustees pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable and, when used with respect to any other Debt, means
the date specified in the instrument governing such Debt as the fixed date on
which the principal of such Debt is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
19
"Taxing Authority" means any government or any political subdivision or
territory or possession or any authority therein or thereof having power to tax.
"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 instrument was
executed, except as provided in Section 907.
"Trust Indenture Legislation" means, at any time, the provisions of (i)
the Canada Business Corporations Act and the regulations thereunder as amended
or re-enacted from time to time, (ii) the provisions of any other applicable
statute of Canada or any province thereof, and (iii) the Trust Indenture Act and
regulations thereunder, but only to the extent applicable under Rule 4d-9 under
the Trust Indenture Act, in each case, relating to trust indentures and 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.
"Trustee" or "Trustees" means the Persons named as the "U.S. Trustee" and
the "Canadian Trustee" in the first paragraph of this Indenture, until a
successor of either or both of them shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" and "Trustees"
shall refer instead to such successor Trustee or Trustees. If the Canadian
Trustee resigns or is removed and, pursuant to Section 610, the Company is not
required to appoint a successor Trustee to the Canadian Trustee, "Trustee",
"Trustees" and any reference to "both of the Trustees" 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 still serving) and the U.S.
Trustee, both jointly and individually.
"U.S. Trustee" means the Person named as the "U.S. Trustee" in the first
paragraph of this instrument, until a successor shall have become such pursuant
to the applicable provisions of this Indenture and thereafter "U.S. Trustee"
shall mean such and any subsequent successor.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as such by
the Board of Directors as set forth below where (a) neither the Company nor any
of its other Subsidiaries (other than another Unrestricted Subsidiary) (i)
provides credit support for, or Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt) or any
Subsidiary of such Subsidiary or (ii) is directly or indirectly liable for any
Debt of such Subsidiary or any Subsidiary of such Subsidiary, and (b) no default
with respect to any Debt of such Subsidiary or any Subsidiary of such Subsidiary
(including any right which the holders thereof may have to take enforcement
action against such Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Debt of the Company and its Subsidiaries (other
than another Unrestricted Subsidiary) to declare a default on such other Debt or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Subsidiary to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, any other Subsidiary of the Company which is not a Subsidiary
of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary,
20
provided that either (x) the Subsidiary to be so designated has total assets of
Cdn.$10,000 or less or (y) immediately after giving effect to such designation,
the Company could incur at least Cdn.$1.00 of additional Debt pursuant to the
Debt Incurrence Provisions and provided further that the Company could make a
Restricted Payment in an amount equal to the greater of the fair market value
and book value of such Subsidiary pursuant to Section 1010 hereof and such
amount is thereafter treated as a Restricted Payment for the purpose of
calculating the aggregate amount available for Restricted Payments thereunder.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 102. OTHER DEFINITIONS.
DEFINED TERM IN SECTION
"Act"...............................................................105
"Additional Amounts"...............................................1016
"Bankruptcy Order"..................................................501
"Change of Control"................................................1014
"Change of Control Triggering Event"...............................1014
"Clearstream".......................................................201
"covenant defeasance"...............................................403
"Custodian".........................................................501
"Debt Incurrence Provisions".......................................1008
"Defaulted Interest"................................................309
"Development Start Date"...........................................1008
"defeasance"........................................................402
"Euroclear".........................................................201
"Events of Default".................................................501
"Excluded Holder"..................................................1016
"First Currency"....................................................116
"Global Security" or "Global Securities"............................201
"Group"............................................................1014
"judgment currency".................................................115
"Other Currency"....................................................116
"Private Placement Legend"..........................................202
"Purchasers"........................................................201
"rate(s) of exchange"...............................................115
21
"Relevant Person"...................................................118
"Required Filing Dates"............................................1015
"Restricted Global Security"........................................201
"Restricted Payment"...............................................1010
"Rule 144A".........................................................201
"Security Register".................................................305
"Security Registrar"................................................305
"Taxes"............................................................1016
"Unrestricted Global Security"......................................201
"U.S. Government Obligations".......................................404
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to either Trustee 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 an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion (other than the certificates required
by Section 1017) with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 104. 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
22
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his 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, 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. 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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustees and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 603) conclusive in favor of the Trustees and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustees
deem sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders 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 such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not more than 30 days prior to the
first solicitation of Holders generally in connection therewith and no 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
23
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 Securities then Outstanding have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act 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.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or 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, suffered or omitted to be done by the Trustees, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) For all purposes of this Indenture, all Initial Securities, any
Additional Securities and Exchange Securities shall vote together as one series
of Securities under this Indenture.
SECTION 106. NOTICES, ETC., TO TRUSTEES AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the U.S. Trustee by the Canadian Trustee, any Holder or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or delivered, in writing, to or with the U.S. Trustee at its
Corporate Trust Offices in The City of New York, Houston, Texas, and in
Seattle, Washington, Attention: Corporate Trust Department;
(b) the Canadian Trustee by the U.S. Trustee, any Holder or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or delivered in writing, to or with the Canadian Trustee at its
Corporate Trust Office in British Columbia, Attention: Assistant Vice
President, Corporate Trust Services; or
(c) the Company by either Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or delivered in writing to the Company addressed
to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇, Attention: Corporate Secretary, or at any other address previously
furnished in writing to the Trustees by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed,
24
first-class postage prepaid, to each 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 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. Any notice mailed to a Holder in the aforesaid manner shall be
conclusively deemed to have been received by such Holder when mailed whether or
not actually received by such Holder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustees, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustees shall be deemed to be a
sufficient giving of such notice.
SECTION 108. 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 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, the
Trustees and the Holders shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 110. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York. Each of the Trustees and
the Company agrees to comply with all provisions of the Trust Indenture
Legislation applicable to or binding upon it in connection with this Indenture
and any action to be taken hereunder. If and to the
25
extent that any provision of this Indenture limits, qualifies or conflicts with
any mandatory requirement of Trust Indenture Legislation, such mandatory
requirement shall prevail. Upon the issuance of the Exchange Securities or the
effectiveness of the Shelf Registration Statement, this Indenture shall be
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309 or Stated
Maturity with respect to any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309 or Stated
Maturity and no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309 or Stated
Maturity, as the case may be, to the next succeeding Business Day.
SECTION 114. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed PTSGE Corp., ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 state court in the State
of New York, Borough of Manhattan, or brought under federal or state securities
laws or brought by the Trustees, or either of them (whether in their individual
capacity or in their capacity as Trustee hereunder), and acknowledges that PTSGE
Corp. has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding, and (iii) agrees that service of
process upon PTSGE Corp. and written notice of said service to it (mailed or
delivered to the Company's Corporate Secretary at its principal office in
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ as specified in Section 106(c) hereof) shall
be deemed in every respect effective service of process upon it in any such suit
or proceeding. The Company further agrees to take any and all actions, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of PTSGE Corp. 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.
26
SECTION 115. CONVERSION OF CURRENCY.
The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and this
Indenture:
(a) (i) If for the purpose 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 in U.S. Dollars,
then the conversion shall be made at the rate of exchange prevailing on
the Business Day before the day on which the judgment is given or the
order of enforcement is made, as the case may be (unless a court shall
otherwise determine).
(ii) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company
will pay such additional amount (or, as the case may be, be refunded 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 U.S. Dollars 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 U.S. Dollars 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 115 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 any 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 the liquidator or
otherwise or any of them which shall be liable for such deficiency. In the
case of subsection (b) above, the amount of such deficiency shall not be
deemed to be reduced by any variation in rates of
27
exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by The Bank of Nova Scotia at its central foreign exchange desk in
its head office in Toronto at 12:00 noon (Toronto time) for purchases of
U.S. Dollars with the judgment currency other than U.S. Dollars referred
to in subsections (a) and (b) above and includes any premiums and costs of
exchange payable.
(e) The Trustees shall have no duty or liability with respect to
monitoring or enforcing this Section 115 and shall have no liability to
the Holders due to fluctuations in currency rates.
SECTION 116. CURRENCY EQUIVALENT.
Except as provided in Section 115, for purposes of the construction
of the terms of this Indenture or of the Securities, in the event that any
amount, including any amounts owed by the Company to the Trustees, is stated
herein in the currency of one nation (the "First Currency"), as of any date such
amount shall also be deemed to represent the amount in the currency of any other
relevant nation (the "Other Currency") which is required to purchase such amount
in the First Currency at the rate of exchange quoted by The Bank of Nova Scotia
at its central foreign exchange desk in its head office in Toronto at 12:00 noon
(Toronto time) on the date of determination.
SECTION 117. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 118. RELIANCE ON FINANCIAL DATA.
In computing any amounts under this Indenture:
(i) to the extent relevant in computing any amounts under this
Indenture, the Company shall use audited financial statements of the
Company, its Subsidiaries, any Person that would become a Subsidiary in
connection with the transaction that requires the computation and any
Person from which the Company or a Subsidiary has acquired an operating
business, or is acquiring an operating business in connection with the
transaction that requires the computation (each such Person whose
financial statements are relevant in computing any particular amount, a
"Relevant Person") for the period or portions of the period to which the
computation relates for which audited financial statements are available
on the date of computation and unaudited financial statements and other
current financial data based on the books and records of the Relevant
Person or Relevant Persons, as the case may be, to the extent audited
financial statements for the
28
period or any portion of the period to which the computation relates are
not available on the date of computation, and
(ii) the Company shall be permitted to rely in good faith on the
financial statements and other financial data derived from the books and
records of any Relevant Person that are available on the date of the
computation.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Initial Securities shall be known as the "10.50% Senior Notes
due February 1, 2010" and the Exchange Securities shall be known as the "10.50%
Senior Exchange Notes due February 1, 2010", in each case, of the Company. The
Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, 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,
as evidenced by their execution of the Securities. 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.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated September 13, 2002, between the Company,
Deutsche Bank Securities Inc., Scotia Capital (USA) Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
CIBC World Markets Corp., Credit Lyonnais Securities (USA) Inc. and TD
Securities (USA) Inc. (collectively, the "Purchasers").
Initial Securities offered and sold to "qualified institutional
buyers" (as defined in Rule 144A ("Rule 144A") under the Securities Act) in
reliance on Rule 144A shall be issued initially in the form of a permanent
global Security in definitive, fully registered form without interest coupons
substantially in the form set forth in this Article (the "Restricted Global
Security") deposited with, or on behalf of, the Depositary or with the U.S.
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by one of the Trustees as hereinafter provided. The Restricted
Global Security will be registered in the name of a nominee of the Depositary
and deposited with the U.S. Trustee on behalf of the Purchasers thereof. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased
29
or decreased by adjustments made on the records of the Depositary or its
nominee, or of the U.S. Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S
shall be issued in the form of a permanent global Security in fully registered
form without interest coupons substantially in the form set forth in this
Article (the "Unrestricted Global Security" and, together with the Restricted
Global Security, the "Global Securities" or each individually, a "Global
Security"), deposited with, or on behalf of, the Depositary or with the U.S.
Trustee, as custodian for the Depositary duly executed by the Company and
authenticated by one of the Trustees as hereinafter provided. The Unrestricted
Global Security will be registered in the name of a nominee of the Depositary
and deposited with the U.S. Trustee on behalf of the Purchasers thereof, and, if
any such Purchaser so elects, for the account of the Euroclear System
("Euroclear") or Clearstream Banking, Societe Anonoyme ("Clearstream"). The
aggregate principal amount of the Unrestricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Depositary or its nominee, or of the U.S. Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
SECTION 202. RESTRICTIVE LEGENDS.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case as
provided for in the Registration Rights Agreement, each such Restricted Global
Security shall bear the following legend (the "Private Placement Legend") on the
face thereof:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS."
SECTION 203. FORM OF FACE OF SECURITY.
The Securities and the Trustees certificate of authentication to be
endorsed thereon are to be substantially in the following forms:
30
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇) ("DTC") TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. (OR SUCH OTHER PERSON AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.*
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.*
--------
* Include only for Global Securities
31
INTRAWEST CORPORATION
10.50% Senior [Exchange]* Note
due February 1, 2010
CUSIP
------
No. B- U.S.$
-------------- ---------------
Intrawest Corporation, a corporation organized under the laws of
Canada (herein called the "Company", which term includes any successor entity
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________________ or its registered assigns in
accordance with the provisions of the Indenture (as defined on the reverse
hereof), the principal sum of __________________________ United States Dollars
(U.S.$ ______) on February 1, 2010, at the office or agency of the Company
referred to below, and to pay interest thereon from August 1, 2002 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on, February 1, 2003, and payable semi-annually
thereafter, on February 1 and August 1 in each year at the rate of 10.50% per
annum until the principal hereof is paid or duly provided for, and (to the
extent lawful) to pay on demand interest on any overdue principal and premium,
if any, and overdue interest at the rate borne by the Securities plus 1% from
the date of the Interest Payment Date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and interest on such
defaulted interest at the interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustees, notice whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of September 18, 2002, between the
Company and the Purchasers named therein (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement in each event of a Registration
Default (as defined in the Registration Rights Agreement), for so long as a
Registration Default has occurred and is continuing (a "Registration Default
Period"), the Company shall pay liquidated damages for such Registration
Default, in an amount equal to
----------------
* Include only for Exchange Securities.
32
interest on this Security at a per annum rate of 0.5% for the first 90 days of
such Registration Default Period and at a per annum rate of 1.0% thereafter for
the remaining portion of such Registration Default Period, in each case
calculated as hereinafter provided.]*
The Initial Securities that remain outstanding after the
consummation of the Exchange Offer and Exchange Securities issued for the
Initial Securities in connection with the Exchange Offer will be treated as a
single class of securities under this Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in The City of New York (which shall be the Corporate Trust Office
of the U.S. Trustee, unless the Company shall designate and maintain some other
office or agency for such purpose), or at such other office or agency of the
Company as may be maintained for such purpose, in lawful money of the United
States of America; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Interest and liquidated damages, if any, on this Security shall be
computed on the basis of a 360 day year of twelve 30-day months. For the
purposes of the Interest Act (Canada) only, the yearly rate of interest which is
equivalent to the rate payable hereunder is the rate payable multiplied by the
actual number of days in the year and divided by 360.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by one of the Trustees referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
----------------
* Include only for Initial Securities.
33
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: INTRAWEST CORPORATION
By _________________________________________
34
SECTION 204. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 10.50% Senior [Exchange]* Notes due February 1, 2010
(the "Securities"), which may be issued under an indenture (the "Indenture")
dated as of September 18, 2002, among the Company, as issuer, JPMorgan Chase
Bank, as U.S. trustee (the "U.S. Trustee", which term includes any successor
under the Indenture), and CIBC Mellon Trust Company, as Canadian trustee (the
"Canadian Trustee", which term includes any successor under the Indenture, and,
together with the U.S. Trustee, the "Trustees" and each a "Trustee") to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustees and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Company will pay to the Holders such Additional Amounts as may
become payable under Section 1016 of the Indenture.
The Securities are redeemable at the option of the Company, in whole
or in part, at any time on or after February 1, 2005 and prior to maturity upon
not less than 30 nor more than 60 days' notice mailed to each Holder of
Securities to be redeemed at such Holder's address appearing in the Security
Register, in amounts of U.S.$1,000 or an integral multiple of U.S.$1,000, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued interest to but excluding the Redemption Date (subject to the right
of Holders of record on the relevant Regular Record Date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption Date), if
redeemed during the 12-month period beginning February 1 of the years indicated:
REDEMPTION
YEAR PRICE
---- ----------
2005............................................ 105.250%
2006............................................ 103.500%
2007............................................ 101.750%
2008 and thereafter............................. 100.000%
If less than all of the Securities are to be redeemed, the Trustees
shall select the Securities to be redeemed by such method as the Trustees shall
deem fair and appropriate. The Trustees may select for redemption Securities and
portions of Securities in amounts of U.S.$1,000 or integral multiples of
U.S.$1,000.
The Securities do not have the benefit of sinking fund obligations.
----------------
* Include only for Exchange Securities.
35
The Securities will also be subject to redemption as a whole, but
not in part, at the option of the Company at any time upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Securities to be redeemed at
such Holder's address appearing in the Security Register at a redemption price
equal to 100% of the principal amount plus accrued interest to but excluding the
Redemption Date in the event the Company has become or would become obligated to
pay, on the next date on which any amount would be payable under or with respect
to the Securities, any Additional Amounts as a result of any change or amendment
to the laws (or regulations promulgated thereunder) of Canada (or any political
subdivision or taxing authority thereof or therein), or any change in or
interpretation or administration of such laws or regulations by the relevant
taxing authority which change or amendment is announced or becomes effective on
or after the date of the Indenture.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to Purchase for all or a specified portion of
the Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustees with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
36
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register, upon surrender of this Security for registration of transfer at any
office or agency of the Company maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more replacement
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided for in the Indenture, the Company may, subject to
certain limitations, from time to time, without notice to or the consent of the
Holders, create and issue Additional Securities so that such Additional
Securities shall be consolidated and form a single series with the Securities
initially issued by the Company and shall have the same terms as to status,
redemption or otherwise as the Securities originally issued. Any Additional
Securities shall be issued with the benefit of an indenture supplemental to the
Indenture or pursuant to an Officers' Certificate.
The Securities are issuable only in registered form without coupons
in denominations of U.S.$1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges payable in connection with any registration of
transfer or exchange.
Prior to the time of due presentment of this 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 this Security is registered
on the Security Register as the owner hereof for all purposes, whether or not
this Security be overdue, and none of the Company, the Trustees or any agent
shall be affected by notice to the contrary.
This Security shall be governed by, and construed in accordance
with, the laws of the State of New York.
37
All terms used in this Security which are not otherwise defined
herein and which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed by either Trustee)
JPMorgan Chase Bank, as U.S. Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK
By: __________________________
Authorized Signatory
CIBC Mellon Trust Company, as Canadian Trustee, certifies that this
is one of the Securities referred to in the within-mentioned Indenture.
CIBC MELLON TRUST COMPANY
By: __________________________
Authorized Signatory
38
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Initial Securities shall be known and designated as the "10.50%
Senior Notes due February 1, 2010" and the Exchange Securities shall be known
and designated as the "10.50% Senior Exchange Notes due February 1, 2010". The
Stated Maturity of the Securities shall be February 1, 2010, and they shall bear
interest at the rate of 10.50% per annum from August 1, 2002, or the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable on, February 1, 2003, and semi-annually thereafter on February 1 and
August 1, in each year and at said Stated Maturity until the principal thereof
is paid or duly provided for.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York (which shall be the Corporate Trust
Office of the U.S. Trustee, unless the Company shall designate and maintain some
other office or agency for such purpose), or at such other office or agency of
the Company as may be maintained for such purpose in lawful money of the United
States of America; provided, however, that, at the option of the Company,
interest may be paid to Holders by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 1012 and 1014.
Additional Securities (including Additional Securities which may be
issued in exchange for Series A Notes) ranking pari passu with the Securities
issued the date hereof may be created and issued from time to time by the
Company without notice to or the consent of the Holders and shall be
consolidated with and form a single series with the Securities initially issued
and shall have the same terms as to status, redemption or otherwise as the
Securities originally issued, provided that, the Company's ability to issue
Additional Securities shall be subject to the Company's compliance with Section
1008. Any Additional Securities shall be issued with the benefit of an indenture
supplemental to this Indenture or pursuant to an Officers' Certificate. Such
Officers' Certificate shall state that the Additional Securities are issued
pursuant to this Indenture.
The Securities shall not be redeemable, other than as provided in
Article Eleven.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Four.
39
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of U.S.$1,000 or any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any of
the following: its Chairman, its President, any Executive Vice President, any
Senior Vice President, or any other Vice President, under its corporate seal
reproduced thereon and attested by its Corporate Secretary. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities 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.
The Trustees, or either of them, shall (upon Company Order)
authenticate and deliver Securities for original issue in accordance with such
Company Order.
The Trustees may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Each reference in this
Indenture to authentication by either Trustee includes authentication by such
agent.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the U.S. Trustee or by the Canadian Trustee by manual signature of
an authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
The Company shall enter into an appropriate agency agreement with
any Security Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustees of the name and address of any
such agent. If the Company fails to maintain a Security Registrar or Paying
Agent, the Trustees shall perform such duties and shall be entitled to
appropriate compensation therefor pursuant to Section 607. The Company or any of
its Wholly Owned Restricted Subsidiaries incorporated in the United States may
act as Paying Agent, Security Registrar, co-registrar or transfer agent.
The Company initially appoints the U.S. Trustee as Security
Registrar and Paying Agent in connection with the Securities.
40
If, after the occurrence of a transaction or a series of related
transactions referred to in Section 801, the Company shall not be the surviving
Person, the successor Person shall have executed an indenture supplemental
hereto with the Trustees pursuant to Article Eight, any of the Securities
authenticated or delivered prior to such amalgamation, consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustees, or
either of them, upon Company Order of the successor Person, shall authenticate
and deliver replacement Securities as specified in such request for the purpose
of such exchange. If replacement Securities shall at any time be authenticated
and delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Securities,
such successor Person, at the option of any Holder but without expense to such
Holder, shall provide for the exchange of all Securities at the time Outstanding
held by such Holder for Securities authenticated and delivered in such new name.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustees 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 and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and either Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office and in any other office or agency designated pursuant to Section 1002
being herein referred to as the "principal register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Said office or agency
of the U.S. Trustee is hereby initially appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
41
Each co-registrar shall maintain a branch register (a "branch
register") of Holders of Securities in the same manner and containing the same
information with respect to each entry contained therein as contained in the
principal register. A copy of every entry in the principal register or a branch
register shall, promptly after the entry is made, be transmitted to each
co-registrar and the Security Registrar, respectively, and entered in the
applicable branch register and the principal register, respectively. The
Corporate Trust Office of the Canadian Trustee in British Columbia is hereby
initially appointed co-registrar for the purpose of registering Securities and
transfers of Securities as herein provided, and the Canadian Trustee hereby
accepts such appointment. The principal register together with each branch
register is herein referred to as the "Security Register".
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustees, or either of them, shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
replacement Securities of any authorized denomination or denominations of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations of a like aggregate
principal amount upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustees, or either of them, shall authenticate and
deliver, the replacement Securities which the Holder making the exchange is
entitled to receive; provided that no exchange of Initial Securities for
Exchange Securities shall occur until an Exchange Offer Registration Statement
shall have been declared effective by the Commission and the Initial Securities
to be exchanged for the Exchange Securities shall be cancelled by either
Trustee. The Company shall give prompt written notice to the Trustees of the
effectiveness of the Exchange Offer Registration Statement and shall promptly
make available to the Trustees a new Global Security for the Exchange
Securities.
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 Security presented or surrendered for registration of
transfer, or for exchange or redemption, 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 or redemption of Securities, but the Company may require payment of a
sum sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 303, 304, 308, 905 or 1108, in accordance with any Offer to
42
Purchase pursuant to Section 1012 or 1014 not involving any transfer or pursuant
to an Exchange Offer.
The Company shall not be required to (i) issue replacement
Securities or register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of the Securities under Section 1105 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the U.S. Trustee, as custodian for such Depositary and (iii) if a
Restricted Global Security, bear legends as set forth in Section 202.
The Depositary or its nominee shall be the Holder of the Global
Securities, and owners of beneficial interests in the Securities
represented by the Global Securities shall hold such interests pursuant to
the Applicable Procedures. Any such owner's beneficial ownership of any
such Securities will be shown only on, and the transfer of such ownership
interest of such Securities will be shown only on, and the transfer of
such ownership interest shall be effected only through, records maintained
by the Depositary or its nominee. Investors in the Unrestricted Global
Security may hold their interests in the Unrestricted Global Security
through Euroclear or Clearstream, if they are participants in such
systems, or indirectly through organizations which are participants in
such systems. Euroclear and Clearstream will hold interests in the
Unrestricted Global Security on behalf of their participants through
customers' securities accounts in their respective names on the books of
their respective depositories, which, in turn, will hold such interests in
the Unrestricted Global Security in customers' securities accounts in the
depositories' names on the books of the Depositary. All interests in a
Global Security, including those held through Euroclear or Clearstream,
will be subject to the Applicable Procedures. Those interests held through
Euroclear and Clearstream will be subject to the Applicable Procedures.
(b) Transfers of any Global Security shall be limited to transfers
of such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in
any Global Security may be transferred in accordance with the Applicable
Procedures and the provisions of Section 307. Unless (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
depositary for a Global Security or ceases to be a "Clearing Agency"
registered under the Exchange Act or announces an intention permanently to
cease business or does in fact do so and a successor Depositary is not
appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing with respect to a Global Security
or (iii) in the case of a Global Security held
43
for the account of Euroclear or Clearstream, Euroclear or Clearstream, as
the case may be, is closed for business for 14 continuous Business Days or
announces an intention to cease or permanently ceases business, owners of
beneficial interests in a Global Security will not be entitled to have any
portions of such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Securities in
definitive form and will not be considered the owners or holders of the
Global Security.
(c) Securities issued in exchange for a Global Security or any
portion thereof pursuant to the last sentence of subsection (b) of this
Section shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that
of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required hereunder.
Any Global Security to be exchanged in whole shall be surrendered by the
Depositary to the U.S. Trustee, as Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security shall
be so surrendered for exchange or, if the U.S. Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the U.S. Trustee. Upon any
such surrender or adjustment, the Trustees, or either of them, shall
authenticate and deliver the Security issuable on such exchange to or upon
the order of the Depositary or an authorized representative thereof. In
the event of the occurrence of any of the events specified in the last
sentence of subsection (b) of this Section 306, the Company will promptly
make available to the Trustees a reasonable supply of certificated
Securities in definitive form.
(d) Except as otherwise set forth in this Indenture or a Global
Security, owners of beneficial interests in the Securities evidenced by a
Global Security will not be entitled to any rights under this Indenture
with respect to such Global Security, and the Depositary or its nominee
may be treated by the Company, the Trustees and any agent of the Company
or the Trustees as the owner and Holder of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any such agent from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or its nominee or impair, as between the Depositary or its
nominee and such owners of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary
or its nominee as Holder of any Security.
(e) Neither the Company nor the Trustees shall have at any time any
responsibility or liability to any owner of any beneficial interest in any
Security or to any other person for any error, omission, action or failure
to act on the part of the Depositary, Euroclear or Clearstream with
respect to payment, when due, to any such owner of the principal, premium,
if any, and interest on the Securities, proper recording of beneficial
ownership of Securities, proper transfers of such beneficial ownership or
any notices to beneficial owners or any other matter of similar or
different kind pertaining to the Securities.
44
SECTION 307. SPECIAL TRANSFER PROVISIONS.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Exchange Offer Registration Statement,
in each case pursuant to the Registration Rights Agreement, the following
transfer provisions shall apply:
(a) Restricted Global Security to Unrestricted Global Security. If,
at any time, an owner of a beneficial interest in the Restricted Global
Security deposited with the Depositary (or the U.S. Trustee as custodian
for the Depositary) wishes to transfer its interest in the Restricted
Global Security to a Person who is required or permitted to take delivery
thereof in the form of an interest in the Unrestricted Global Security,
such owner shall, subject to the Applicable Procedures, exchange or cause
the exchange of such beneficial interest for an equivalent beneficial
interest in the Unrestricted Global Security as provided in this Section
307(a). Upon receipt by the U.S. Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the U.S. Trustee to credit or cause to be credited a beneficial interest
in the Unrestricted Global Security in an amount equal to the beneficial
interest in the Restricted Global Security to be exchanged, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary to be
credited with such increase, and (3) a certificate substantially in the
form of Exhibit A-1 hereto given by the owner of such beneficial interest,
the U.S. Trustee, as Security Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount of the
Restricted Global Security and to increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Security by the
principal amount of the beneficial interest in the Restricted Global
Security to be exchanged, to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in the
Unrestricted Global Security equal to the reduction in the aggregate
principal amount of the Restricted Global Security, and to debit, or cause
to be debited, from the account of the Person making such exchange or
transfer the beneficial interest in the Restricted Global Security that is
being exchanged or transferred.
(b) Unrestricted Global Security to Restricted Global Security. If,
at any time, an owner of a beneficial interest in the Unrestricted Global
Security deposited with the Depositary (or with the U.S. Trustee as
custodian for the Depositary) wishes to transfer its interest in the
Unrestricted Global Security to a Person who is required or permitted to
take delivery thereof in the form of an interest in the Restricted Global
Security, such owner shall, subject to the Applicable Procedures, exchange
or cause the exchange of such interest for an equivalent beneficial
interest in the Restricted Global Security, as provided in this Section
307(b). Upon receipt by the U.S. Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member, directing
the U.S. Trustee, as Security Registrar, to credit or cause to be credited
a beneficial interest in the Restricted Global Security equal to the
beneficial interest in the Unrestricted Global Security to be exchanged,
and (2) a written order given in accordance with the Applicable Procedures
containing information regarding the
45
participant account of the Depositary to be credited with such increase,
the U.S. Trustee, as Security Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount of the
Unrestricted Global Security and to increase or cause to be increased the
aggregate principal amount of the Restricted Global Security by the
principal amount of the beneficial interest in the Unrestricted Global
Security to be exchanged, and the U.S. Trustee, as Security Registrar,
shall instruct the Depositary, concurrently with such reduction, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Restricted Global Security equal
to the reduction in the aggregate principal amount of the Unrestricted
Global Security and to debit or cause to be debited from the account of
the Agent Member acting for the Person making such transfer the beneficial
interest in the Unrestricted Global Security that is being transferred.
(c) Restricted Global Security to Unrestricted Global Security After
Two Years. If the holder of a beneficial interest in the Restricted Global
Security wishes at any time after September 18, 2004 to (A) transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Security or (B) to exchange
such interest for a beneficial interest in the Unrestricted Global
Security, such transfer or exchange may be effected, subject to the
Applicable Procedures, only in accordance with this Section 307(c). Upon
receipt by the U.S. Trustee of (1) in the case of a transfer or exchange
of an interest in the Restricted Global Security, instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the U.S. Trustee to credit or cause to be credited a beneficial interest
in the Unrestricted Global Security in an amount equal to the beneficial
interest in the Restricted Global Security to be so transferred or
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and the Euroclear or Clearstream account (if applicable) to be
credited with such beneficial interest and (3) a certificate substantially
in the form of Exhibit A-2 hereto given by the holder of such beneficial
interest, the U.S. Trustee, as Security Registrar, shall instruct the
Depositary to reduce the principal amount of the Restricted Global
Security, and to increase the principal amount of the Unrestricted Global
Security, by the principal amount of the beneficial interest in the
Restricted Global Security to be so transferred or exchanged, and to
credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Unrestricted Global
Security having a principal amount equal to the amount by which the
principal amount of the Restricted Global Security was reduced upon such
transfer or exchange.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of and each owner of a beneficial interest
in such Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Security or beneficial interest
therein only as provided in this Indenture. The Trustees shall have no
duty or liability with respect to any Holder's or beneficial owner's
compliance with the Private Placement Legend or this Section 307(d).
46
The Security Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Security Registrar.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to either Trustee, or
(b) the Company and either Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustees such security or indemnity, or both, as may be required
by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustees that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustees, or
either of them, shall authenticate and deliver, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustees) connected therewith.
Every replacement Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute a contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
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.
SECTION 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any 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 that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the interest rate borne by the Securities, to the extent
lawful (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest"), shall forthwith cease to be payable to the Holder
47
on the Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (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 Security and the date of the proposed payment, and at the
same time the Company shall deposit with either Trustee an amount of money
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 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 Subsection provided. Thereupon the
Trustees shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustees of the notice of the proposed payment. The
Trustees shall promptly notify the Company of such Special Record Date. In
the name and at the expense of the Company, the Trustees shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, 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 mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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
Subsection, such payment shall be deemed practicable by the Trustees.
Subject to the foregoing provisions of this Section, 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 310. PERSONS DEEMED OWNERS.
Prior to the time of due presentment for registration of transfer,
the Company, the Trustees and any agent of the Company or the Trustees may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 309) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
48
Company, the Trustees or any agent of the Company or the Trustees shall be
affected by notice to the contrary.
SECTION 311. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1012 or 1014 shall, if surrendered to any Person other than a Trustee,
be delivered to one of the Trustees and shall be promptly cancelled by such
Trustee. The Company shall deliver to either Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by such Trustee. 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 destroyed and certification of their
destruction delivered to the Company unless by a Company Order the Company shall
direct that cancelled Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months. For the purposes of the Interest Act
(Canada) only, the yearly rate of interest which is equivalent to the rate
payable under the Securities is the rate payable multiplied by the actual number
of days in the year divided by 360.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers and,
if so, the Trustees shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
such omission of such numbers.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 402 or Section 403
be applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Four.
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SECTION 402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities on
the date the conditions set forth below 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 the
Outstanding Securities, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 405 and the other Sections of this Indenture
referred to in clauses (A), (B), and (C) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustees, on demand of and 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 Outstanding Securities to receive solely
from the trust fund described in Section 404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 308, 1002,
1003 and 1016 (for purposes of applying Section 1016, if either Trustee (or any
other qualifying trustee referred to in Section 404(a)) is required by law or by
the interpretation or administration thereof to withhold or deduct any amount
for or on account of Taxes (as defined in Section 1016) from any payment made
from the trust fund described in Section 404 under or with respect to the
Securities, such payment shall be deemed to have been made by the Company and
the Company shall be deemed to have been so required to withhold or deduct), (C)
the rights, powers, trusts, duties and immunities of the Trustees hereunder and
the Company's obligations in connection therewith, including the Company's
obligations under Section 607 hereof and (D) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under Section
403 with respect to the Securities.
SECTION 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company shall be released from its
obligations under any covenant contained in Article Eight and in Sections 1005
through 1015 with respect to the Outstanding Securities on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities, 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 any 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 Sections 501(c), (d) and (e) but, except as
specified above, the remainder of this Indenture (including Section 607 hereof)
and such Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 401 of the option applicable to Section
50
403, Sections 501(c) through (g) and Sections 501(h) through (j) (with respect
to the Subsidiaries only) shall no longer constitute Events of Default.
SECTION 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with either Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the provisions
of this Article Four applicable to it) as trust funds in trust for the
sole purpose of making the following payments to the Holders of such
Securities, (A) cash in U.S. Dollars in an amount, or (B) U.S. Government
Obligations 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, cash in U.S. Dollars in
an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustees, to
pay and discharge the principal of, premium, if any, and interest on the
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal, premium, if any, or installment of
interest; provided that the Trustees shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities. Before such a
deposit, the Company may give the Trustees, in accordance with Section
1103 hereof, a notice of its election to redeem all of the Outstanding
Securities at a future date in accordance with Article Eleven hereof,
which notice shall be irrevocable. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the timely payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
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 U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt;
(b) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 501(h), (i)
or (j) is concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being
51
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(c) Neither the Company nor any Restricted Subsidiary is 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);
(d) Such deposit, defeasance or covenant defeasance, as applicable,
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 or any Restricted Subsidiary is a party or by which it
is bound;
(e) In the case of an election under Section 402, the Company shall
have delivered to the Trustees an Opinion of Counsel qualified to practice
in the United States stating that (x) the Company has received from, or
there has been published by, the U.S. Internal Revenue Service a ruling,
or (y) since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize gain or loss for United States
federal income tax purposes as a result of such deposit and defeasance and
will be subject to United States 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;
(f) In the case of an election under Section 403, the Company shall
have delivered to the Trustees an Opinion of Counsel qualified to practice
in the United States to the effect that the Holders of the Outstanding
Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred;
(g) The Company shall have delivered to the Trustees an Opinion of
Counsel qualified to practice in Canada or a ruling from Revenue Canada
Taxation to the effect that the Holders of the Outstanding Securities will
not recognize income, gain or loss for Canadian federal or provincial
income tax or other Canadian tax purposes as a result, in and of itself,
of such deposit and, defeasance or covenant defeasance, as applicable, and
will be subject to Canadian federal or provincial income tax and other
Canadian tax on the same amounts, in the same manner and at the same time
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);
(h) The Company shall have delivered to the Trustees an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to either the
52
defeasance under Section 402 or the covenant defeasance under Section 403
(as the case may be) have been complied with; and
(i) The Company shall have delivered to the Trustees an Opinion of
Counsel qualified to practice law in the United States to the effect that
such deposit shall not cause either Trustee or the trust so created to be
subject to the Investment Company Act.
SECTION 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with a Trustee (or other qualifying trustee, collectively for purposes of this
Section 405, the "Trustee") pursuant to Section 404 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee on an after-tax
basis against any tax, fee or other charge imposed on or assessed against the
cash or U.S. Government Obligations deposited pursuant to Section 404 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 the
Outstanding Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 404 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
404(a)), are in excess of the amount thereof which would then be required to be
deposited to effect the defeasance or covenant defeasance, as the case may be.
SECTION 406. REINSTATEMENT.
If a Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations (or any proceeds thereof) in accordance with Section 405,
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 402 or 403,
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 405; provided, however, that,
if the Company makes any payment of principal of (or premium, if any) or
interest on any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of
53
such Securities to receive such payment from the money and U.S. Government
Obligations (any proceeds thereof) held by such Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) failure to pay any interest on any Security when due, and such
failure shall have continued for 30 days;
(b) failure to pay principal of (or premium, if any, on) any
Security at its Maturity;
(c) default in the payment of principal and interest on Securities
required to be purchased pursuant to an Offer to Purchase as described
under Sections 1012 and 1014 when due and payable;
(d) failure to perform or comply with the provisions described under
Section 801;
(e) failure to perform any other covenant or agreement of the
Company under this Indenture or the Securities continued for 30 days after
written notice to the Company by the Trustees or Holders of at least 25%
in aggregate principal amount of Outstanding Securities;
(f) default under the terms of any instrument evidencing or securing
Debt for money borrowed by the Company or any Restricted Subsidiary having
an outstanding principal amount of Cdn.$25 million individually or in the
aggregate which default results in the acceleration of the payment of all
or any portion of such Debt or constitutes the failure to pay all or any
portion of such Debt when due, provided, however, that for such purpose
Debt shall not include any Non-Recourse Debt;
(g) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any Subsidiary in an amount in excess of
Cdn.$25 million which remains undischarged or unstayed for a period of 60
days after the date on which the right to appeal has expired;
(h) the Company or any Subsidiary pursuant to or under or within the
meaning of any Bankruptcy Law:
54
(1) commences a voluntary case or proceeding;
(2) consents to the entry of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case
against it;
(3) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(4) makes a general assignment for the benefit of its
creditors or files a proposal or other scheme of arrangement
involving the rescheduling or composition of its Debt;
(5) files a petition in bankruptcy or an answer or consent
seeking reorganization or relief; or
(6) consents to the filing of such petition in bankruptcy or
the taking possession by a Custodian of it or any substantial part
of its property; or
(i) a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against the Company or any
Subsidiary, and such Bankruptcy Order remains unstayed and in effect for
30 consecutive days; or
(j) a Custodian shall be appointed out of court for the Company or
any Subsidiary, or for all or any substantial part of the property of the
Company, or any Subsidiary, or any encumbrancer shall take possession of
all or any substantial part of the property of the Company or any
Subsidiary and such Custodian has not been removed, or such encumbrancer
is in possession of such property, for 30 consecutive days.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law. "Bankruptcy Order" means any court order made in a
proceeding pursuant to or within the meaning of any Bankruptcy Law, containing
an adjudication of bankruptcy or insolvency, or providing for liquidation,
winding up, dissolution or reorganization, or appointing a Custodian of a debtor
or of all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(h), (i) or (j)) occurs and is continuing, then and in every such
case either Trustee, by notice in writing to the Company, or the Holders of not
less than 25% in principal amount of the Outstanding Securities, by notice in
writing to the Company and the Trustees, may declare the principal of all the
Outstanding Securities to be due and payable. If an Event of Default specified
in Section 501(h), (i) or (j) occurs and is continuing, then the principal of
all the Outstanding 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. The Company will deliver to
55
the Trustees, within 10 days after the occurrence thereof, notice of any default
or acceleration referred to in Section 501(f).
At any time after a declaration of acceleration has been made
hereunder and before a judgment or decree based on such acceleration has been
obtained by either Trustee as hereinafter in this Article provided, the Holders
of a majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustees, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited, or caused to be paid or
deposited, with either Trustee a sum sufficient to pay:
(1) all overdue interest on all Securities,
(2) the principal of (and premium, if any, on) any Securities
that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Securities,
(3) to the extent that payment of such interest is lawful, any
interest upon overdue interest, and
(4) 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
(b) all Events of Default, other than the non-payment of principal
and interest which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEES.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when it becomes due and payable and such default continues for a period of
30 days; or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity, or, with respect to any Security
required to have been purchased pursuant to an Offer to Purchase made by
the Company, when due and payable,
the Company will, upon demand of either Trustee, pay to the U.S. Trustee, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto,
56
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 and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the 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 the Securities,
wherever situated.
If an Event of Default occurs and is continuing, either Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders under this Indenture by such appropriate private or judicial
proceedings as such Trustee shall deem most effectual to protect and enforce
such rights.
SECTION 504. TRUSTEES MAY FILE PROOFS OF CLAIM.
In case of the pendency of any proceeding against the Company
pursuant to or under any Bankruptcy Laws, 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 or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest 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 proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
Custodian in any such 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 (and
such direct payments to Holders shall not be allowed without such
Trustee's consent), to pay such Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of each
Trustee, its agents and counsel, and any other amounts due to such
Trustees 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
proposal, plan of reorganization, arrangement, adjustment or composition or
other similar arrangement 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.
57
SECTION 505. TRUSTEES MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustees without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by a Trustee shall be brought in its
own name and 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 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, upon presentation of the Securities 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 upon the
Securities for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustees
of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount
of the 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;
(c) such Holder or Holders have offered to the Trustees reasonable
funding and indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(d) the Trustees for 60 days after their receipt of such notice,
request and offer of indemnity have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustees during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more 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,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
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 as between itself and the Company, which is
absolute and unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 309) interest and any Additional Amounts on such
Security on the respective due dates expressed in such Security (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 the Company, the
Trustees and the Holders shall, subject to any determination in such proceeding,
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 provided in Section 308, no right or remedy herein
conferred upon or reserved to the Trustees or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustees or of any Holder of any
Security 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.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustees, or
exercising any trust or power conferred on the Trustees, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustees need not take any action which might involve them
in personal liability or, in their sole discretion, be unjustly
prejudicial to the rights of Holders not joining therein; and
(c) the Trustees may take any other action deemed proper by the
Trustees which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(b) 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 affected.
Upon any such waiver, 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 impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against
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either Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by either Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY 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, extension or usury 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.
ARTICLE SIX
THE TRUSTEES
SECTION 601. 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 jointly, except to the
extent otherwise provided herein and except to the extent that under Trust
Indenture Legislation either Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by a Trustee which is not so incompetent or
unqualified to the extent it can do so under applicable law, and except that
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.
SECTION 602. NOTICE OF DEFAULTS.
Each Trustee shall promptly give the other Trustee notice of any
Default or Event of Default known to it. Within 30 days after the occurrence of
any Event of Default of which either Trustee has actual notice, one or both of
the Trustees shall transmit by mail to all Holders,
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as their names and addresses appear in the Security Register, notice of such
Event of Default unless such Event of Default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security, 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 determines that the
withholding of such notice is in the best interests of the Holders and gives
written notice to that effect to the Company.
SECTION 603. CERTAIN RIGHTS OF TRUSTEES.
Except during the continuance of an Event of Default, the Trustees
undertake to perform such functions and duties and only such functions and
duties as are specifically set forth in this Indenture, and no implied duties or
obligations shall be read into this Indenture against the Trustees. In the
exercise of the powers and discharge of the duties prescribed or conferred by
the terms of this Indenture, during the continuance of an Event of Default, each
Trustee shall exercise the care, diligence and skill of a reasonably prudent
trustee, and shall act honestly and in good faith and in a commercially
reasonable manner and with a view to and in the best interests of the Holders.
No provision of this Indenture shall be construed to relieve either of the
Trustees from its duties, except that to the extent permitted by Trust Indenture
Legislation:
(a) 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;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustees
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, each of the Trustees
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustees may consult with counsel and the 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;
(e) the Trustees shall be under no obligation to exercise any of the
rights or powers vested in them by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustees reasonable security and
indemnity against the costs, expenses and liabilities which might be
incurred by them in compliance with such request or direction;
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(f) 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;
(g) 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
(h) no provision of this Indenture shall require the Trustees to
expend or risk their own funds or otherwise incur any financial liability
in the performance of any of their duties hereunder, or in the exercise of
any of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to them.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustees assume no responsibility for their correctness. The
Trustees make no representations as to the validity or sufficiency of this
Indenture or the Securities except that the Trustees represent that they are
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform their obligations hereunder. The Trustees shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof. The Trustees shall not have any responsibility or liability
for any information provided to Holders or any other Person, including without
limitation in the solicitation of any consent or waiver hereunder, or pursuant
to any Offer to Purchase.
SECTION 605. MAY HOLD SECURITIES.
The Trustees, any Paying Agent, Security Registrar or any other
agent of the Company, in their individual or any other capacity, may become the
owner or pledgee of Securities, and, subject to Section 608 and Trust Indenture
Act Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if they were not Trustees, Paying Agent, Security Registrar
or such other agent.
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 in writing with the Company.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) 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);
(b) 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 without limitation the reasonable
compensation and the expenses and disbursements of each of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or bad faith; and
(c) to indemnify and hold the Trustees and their respective
directors, officers, agents and employees (collectively, the
"Indemnitees") harmless from and against any and all liabilities, losses,
damages, fines, suits, actions, demands, penalties, costs and expenses,
including out-of-pocket, incidental expenses, legal fees and expenses, the
allocated costs and expenses of in-house counsel and legal staff and the
costs and expenses of defending or preparing to defend against any claim
("Losses") that may be imposed on, incurred by, or asserted against, the
Indemnitees or any of them for following any instruction or other
direction upon which the Trustees are authorized to rely pursuant to the
terms of this Indenture, and, in addition and not in limitation of the
foregoing, to indemnify and hold the Indemnitees and each of them harmless
from and against any and all Losses that may be imposed on, incurred by,
or asserted against the Indemnitees or any of them in connection with or
arising out of the Trustees' performance under this Indenture; provided
the Indemnitee seeking indemnification has not acted with negligence or in
bad faith (subject to the provisions of Section 603). The provisions of
this Section 607 shall survive the termination of this Indenture and the
resignation or removal of any Trustee for any reason. The Trustees shall
notify the Company promptly of any claim for which they may seek
indemnity. Failure by the Trustees to notify the Company shall not relieve
the Company of its obligations hereunder.
SECTION 608. CONFLICTING INTERESTS.
(a) If a Trustee has or shall acquire any "conflicting interest" as
such term is defined in the Trust Indenture Act, then, within 90 days after
ascertaining that it has such conflicting interest, and if the Default to which
such conflicting interest relates has not been cured or otherwise eliminated
before the end of such 90-day period, such Trustee shall eliminate such
conflicting interest or resign in the manner and with the effect specified in
Section 610.
(b) If at any time a Trustee fails to comply with the provisions of
Section 608(a), such Trustee shall within 10 days after the expiration of the
90-day period
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referred to therein, transmit notice of such failure to the other Trustee in the
manner provided in Section 106, and to the Holders in the manner provided in
Section 107.
(c) Notwithstanding the provisions of Section 608(a), if a Trustee
has such a conflicting interest, the validity and enforceability of this
Indenture and of the Securities issued hereunder shall not be affected in any
manner whatsoever by reason only of such conflicting interest.
SECTION 609. CORPORATE TRUSTEES REQUIRED; ELIGIBILITY.
(a) There shall at all times be a U.S. Trustee hereunder which shall
be eligible to act as Trustee under Trust Indenture Act Section 310(a)(1) and
which shall have a combined capital and surplus of at least U.S.$2,000,000 and
have its Corporate Trust Office 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 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 corporation organized under the laws of Canada or any province
thereof and authorized under such laws and the laws of the Province of British
Columbia to carry on trust business therein. If at any time the Canadian Trustee
shall cease to be eligible in accordance with this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. 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 under Section 611.
(b) Either Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to such Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee or the Holders of a majority
in principal amount of the Outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) Either Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to such Trustee and to the Company.
(d) If at any time:
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(1) either Trustee shall fail to comply with the provisions
of Section 608 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
(2) either Trustee shall cease to be eligible under Section
609 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
(3) either Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of
such Trustee or of its property shall be appointed or
any public officer shall take charge or control of such
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove such
Trustee, or (ii) subject to Section 514, the Holder of any Security who has been
a bona fide Holder of a Security 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 and the appointment of a successor
Trustee.
(e) 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.
(f) 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, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee; 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 shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with Section
611, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Securities and so accepted appointment, the Holder
of any Security who has been a bona fide Holder for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(g) The Company shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to the
remaining Trustee in the manner provided in Section 106, and to the Holders in
the manner provided in Section 107. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder 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 request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
all amounts due it under Section 607, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder subject
to the claim and lien provided for in Section 607. 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 such
rights, powers and trusts.
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 612. 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 of the corporate trust
business of either Trustee, shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by a Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor to such authenticating Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor to such Trustee; and in all such cases, such Securities shall
have the full force and effect of Securities provided for in this Indenture.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEES AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
A Holder may, upon payment to either the U.S. Trustee or the
Canadian Trustee of a reasonable fee and subject to compliance with any
applicable requirement of Trust Indenture Legislation, require such Trustee to
furnish within 10 days after receiving the affidavit or statutory declaration
referred to below, a list setting out (i) the name and address of every
registered Holder, (ii) the aggregate principal amount of Securities owned by
each registered Holder and (iii) the aggregate principal amount of Outstanding
Securities, each as shown on the
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records of such Trustee on the day that the affidavit or statutory declaration
is delivered to such Trustee. The affidavit or statutory declaration, as the
case may be, shall contain (x) the name, address and occupation of the Holder,
(y) where the Holder is a corporation, its name and address for service and (z)
a statement that the list will not be used except in connection with an effort
to influence the voting of the Holders, an offer to acquire Securities, or any
other matter relating to the Securities or the affairs of the Company. Where the
Holder is a corporation, the affidavit or statutory declaration shall be made by
a director or officer of the corporation.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustees that neither the Company nor the
Trustees shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders, in accordance with
Trust Indenture Legislation, 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 Trust Indenture
Legislation.
ARTICLE EIGHT
AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN TERMS.
The Company may not, in a single transaction or a series of related
transactions, amalgamate or consolidate with or merge into any other Person, or
permit any other Person to amalgamate or consolidate with or merge into the
Company, or directly or indirectly transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its property and assets to any Person,
unless: (i) the Company shall be the surviving Person, or the Person (if other
than the Company) formed by such amalgamation, consolidation or into which the
Company is merged or that acquires by disposition all or substantially all of
the properties and assets of the Company shall be a company, partnership or
trust organized and validly existing under the federal laws of Canada or any
province or territory thereof or the laws of the United States of America or any
state thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustees in form
satisfactory to the Trustees, all of the Company's obligations under this
Indenture and the Securities; (ii) immediately before and after giving effect to
such transaction, no Event of Default or event that with the passing of time or
the giving of notice, or both, would constitute an Event of Default shall have
occurred and be continuing; (iii) immediately after giving effect to such
transaction and treating any Debt which becomes an obligation of the Company or
any Restricted Subsidiary or any Person who becomes a successor obligor under
this Indenture as a result of such transaction as having been incurred by the
Company or such Restricted Subsidiary or such Person at the time of the
transaction, the Company or such Restricted Subsidiary or such Person, as the
case may be, could Incur at least Cdn.$1.00 of additional Debt pursuant to the
Debt Incurrence Provisions; and (iv) immediately after giving effect to such
transaction, on a pro forma basis, the Company or any Person becoming the
successor obligor under this Indenture shall have a Consolidated Net Worth no
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lower than 90% of the Consolidated Net Worth of the Company immediately before
such transaction; provided, however, that clauses (iii) and (iv) above shall not
apply to any transaction between the Company and one or more Wholly Owned
Restricted Subsidiaries.
SECTION 802. SUCCESSOR SUBSTITUTED.
If, after the occurrence of a transaction or a series of related
transactions referred to in Section 801, the Company shall not be the surviving
Person, the successor Person formed by such amalgamation or consolidation or
into which the Company is merged or that acquires by disposition all or
substantially all of the properties and assets of the Company 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 had been named as
the Company herein; and thereafter, except in the case of a lease, the Company
shall be discharged from all obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when authorized by
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:
(a) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or therein, or to make any other provisions with respect to matters
or questions arising under this Indenture; provided that, in each case,
such provisions shall not adversely affect the interests of the Holders in
any material respect;
(b) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities upon the merger, amalgamation, consolidation
or sale or other disposition of all or substantially all of the assets of
the Company in accordance with Section 801;
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
611;
(d) to secure the Securities pursuant to the requirements of Section
1011 or otherwise;
(e) to issue Additional Securities as provided in Section 301;
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(f) to make any other change that does not adversely affect the
rights of any Holder in any material respect; or
(g) to evidence and reflect the occurrence of a Fall-away Event.
SECTION 902. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT
OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of such Holders
delivered to the Company and the Trustees, the Company, when authorized by a
Board Resolution, and the Trustees may enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of waiving
or modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture, amendment or waiver
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security;
(b) reduce the principal amount of (or the premium), or interest on,
any Security;
(c) change the place or currency of payment of principal of (or
premium), or interest on, any Security;
(d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security;
(e) reduce the above-stated percentage of Outstanding Securities
necessary to modify or amend this Indenture;
(f) reduce the percentage of aggregate principal amount of
Outstanding Securities necessary for waiver of compliance with Section 513
and 1018;
(g) modify any provisions of this Section;
(h) following the mailing of any Offer to Purchase, modify any Offer
to Purchase for the Securities required under Sections 1012 and 1014 in a
manner materially adverse to the Holders thereof; or
(i) modify any provisions of this Indenture relating to the payment
of Additional Amounts.
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,
and (subject to Section 603 hereof) shall be fully protected in relying upon, an
Officers' Certificate and 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. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities 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 so modified as to conform, in the opinion of the Trustees and the
Board of Directors, 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.
SECTION 906. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustees of any
supplemental indenture pursuant to the provisions of Section 903, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the matter provided for in Section 107, setting forth in general terms the
substance of such supplemental indenture.
SECTION 907. CONFORMITY WITH TRUST INDENTURE LEGISLATION.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Legislation as then in
effect.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Principal of (and premium, if any) and interest on the Securities
shall be considered paid on the date due if as of 10:00 a.m. (New York City
time) on such date a Trustee or the Paying Agent if other than the Company or an
Affiliate of the Company holds in accordance with this Indenture money in
immediately available funds sufficient to pay all principal (and premium, if
any) and interest then due and such Trustee or the Paying Agent, as the case may
be, is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Corporate Trust Office of the
U.S. Trustee shall be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustees of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the 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, and the Company hereby appoints the U.S. Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind 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 The City of New York for such purposes. The Company will
give prompt written notice to the Trustees of any such designation or rescission
and any change in the location of any such office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest 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 the
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum in same day funds (or New York Clearing House
72
funds if such deposit is made prior to the date on which such deposit is
required to be made) sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest and the Company will
promptly notify the Trustees of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustees 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:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustees notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(c) 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 such 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 money.
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 (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, subject to any liens of the
Trustees, unless an abandoned property law designates another person, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security 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.
SECTION 1004. 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 the corporate
existence and corporate power and authority of the Company and each Restricted
Subsidiary; provided, however, that the Company shall not be required to
preserve any such corporate existence and corporate power and authority if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Restricted Subsidiaries taken
as a whole.
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SECTION 1005. 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, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all material lawful claims for labor, materials
and supplies, which, if unpaid, might by law become a Lien upon the property of
the Company or any Restricted Subsidiary that could produce a material adverse
effect on the consolidated financial condition of the Company; 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 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its business or
the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in every case, as
and to the extent that the Company may be prevented by fire, strikes, lockouts,
acts of God, inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable casualty or similar causes beyond
the control of the Company; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Restricted Subsidiaries to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 1008. LIMITATION ON DEBT AND PREFERRED SHARES.
The Company may not Incur any Debt, and may not permit any
Restricted Subsidiary to Incur any Debt or issue any Preferred Shares, unless,
after giving pro forma effect to the Incurrence of such Debt or the issuance of
such Preferred Shares and the receipt and application of the proceeds thereof,
(i) the Consolidated Cash Flow Coverage Ratio of the Company would be greater
than 1.5 to 1 and (ii) the Consolidated Net Debt Ratio of the
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Company would be no greater than 0.6 to 1 (clauses (i) and (ii) above,
collectively being the "Debt Incurrence Provisions").
Notwithstanding the foregoing limitation, the Company and any
Restricted Subsidiary will be permitted to Incur and issue the following:
(a) Debt evidenced by the Initial Securities, the Exchange
Securities and any Additional Securities which may be issued
in exchange for the Series A Notes;
(b) Debt of the Company to any Restricted Subsidiary and Debt of
any Restricted Subsidiary to, or Preferred Shares of any
Restricted Subsidiary owned by, the Company or another
Restricted Subsidiary;
(c) Debt Incurred or Preferred Shares issued by a Person and
outstanding at the time such Person became a Restricted
Subsidiary, or such Person is merged into a Restricted
Subsidiary, or a Restricted Subsidiary merges into or
consolidates or amalgamates with such Person (in a transaction
in which the resulting entity is or becomes a Restricted
Subsidiary), excluding Debt or Preferred Shares Incurred or
issued as consideration for or in anticipation of, or to
provide all or any portion of the funds or credit support
utilized or necessary to consummate, the transaction pursuant
to which such Person becomes a Restricted Subsidiary or such
merger, consolidation or amalgamation;
(d) Debt Incurred by the Company or any Restricted Subsidiary
secured by a Lien on an asset and outstanding at the time such
asset was acquired by the Company or any Restricted
Subsidiary, excluding Debt Incurred in connection with the
transaction pursuant to which such asset was acquired;
(e) Debt of the Company or any Restricted Subsidiary Incurred
under a Qualifying Construction Loan;
(f) Debt of the Company or any Restricted Subsidiary Incurred to
finance the estimated costs of development, construction or
installation of recreational or related facilities or
amenities of a resort (including, for greater certainty,
alpine, cross-country or wilderness ski facilities, golf
facilities, employee housing facilities or hotels), provided
that (i) the principal amount of such Debt does not exceed
100% of such estimated costs plus any expenses to be Incurred
in connection with the Incurrence of such Debt, (ii) all such
Debt could have been Incurred under the Debt Incurrence
Provisions on the date the first Cdn.$1.00 of such Debt was
Incurred (the "Development Start Date"), and (iii) for purpose
of the calculation of the Debt Incurrence Provisions, the full
amount of Debt Incurred pursuant to this clause (f) on or
after the Development Start Date
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shall be considered to be outstanding as of the Development
Start Date giving pro forma effect to the utilization thereof
to finance the costs of development, construction or
installation of such facilities or amenities;
(g) Debt of the Company or any Restricted Subsidiary Incurred
pursuant to any revolving credit facility existing or
committed at the date of this Indenture or any revolving
credit facility which becomes available to the Company or any
Restricted Subsidiary after the date of this Indenture;
provided that (i) with respect to any revolving credit
facility which becomes available to the Company or any
Restricted Subsidiary after the date of this Indenture, the
full amount of such revolving credit facility could have been
Incurred pursuant to the Debt Incurrence Provisions as of the
date the first Cdn.$1.00 of such Debt was Incurred, and (ii)
for purpose of the calculation of the Debt Incurrence
Provisions, the full amount of each revolving credit facility
available to the Company or any Restricted Subsidiary shall be
considered to be outstanding as of the later of the date of
this Indenture and the date the first Cdn.$1.00 of Debt was
Incurred thereunder, giving pro forma effect to the
utilization thereof (provided further, that for such purpose
any portion of any revolving credit facility not actually
outstanding as of the date the calculations under the Debt
Incurrence Provisions are made, in the case of any revolving
credit facility existing or committed at the date of this
Indenture which is not available specifically for the purpose
of financing capital expenditures and any revolving credit
facility which becomes available to the Company or any
Restricted Subsidiary after the date of this Indenture for the
purpose of refinancing any such revolving credit facility,
shall be considered to be utilized to repay or retire Debt,
and, in any other case, shall be considered to be utilized to
finance capital expenditures);
(h) Debt of the Company or any Restricted Subsidiary which is
Incurred or Preferred Shares of any Restricted Subsidiary
issued in exchange for, or the proceeds of which are used to
renew, extend, repay, redeem, purchase, refinance or refund
(each a "refinancing", and "refinance" and "refinanced" shall
have meanings correlative to the foregoing), any Debt of the
Company or any Restricted Subsidiary or Preferred Shares of
any Restricted Subsidiary outstanding on the date of this
Indenture or permitted to be Incurred pursuant to the Debt
Incurrence Provisions, this clause (h) and clauses (a), (c),
(d), (f) and (g) above; provided, however, that (i) the Debt
which is Incurred or Preferred Shares which are issued shall
not exceed the aggregate principal amount of all Debt and the
aggregate Preferred Share Amounts with respect to all
Preferred Shares which are so exchanged or refinanced at such
time, plus the amount of any premium required to be paid in
connection with such exchange or refinancing pursuant to the
terms of the Debt or Preferred Shares which are so exchanged
or refinanced or the amount of any premium reasonably
determined by the Company or the relevant Restricted
Subsidiary as
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necessary to accomplish such exchange or refinancing by means
of a tender offer or privately negotiated agreement, plus the
expenses of the Company and the relevant Restricted Subsidiary
Incurred in connection with such exchange or refinancing; (ii)
Debt the proceeds of which are used to refinance Debt of the
Company which is pari passu with or subordinate to the
Securities shall only be permitted if (x) in the case of any
refinancing of Debt of the Company which is pari passu to the
Securities, the refinancing Debt is made pari passu to the
Securities, or subordinated in right of payment to the
Securities, and (y) in the case of any refinancing of Debt
which is subordinated in right of payment to the Securities,
the refinancing Debt is made subordinate in right of payment
to the Securities at least to the same extent as the Debt
being refinanced; (iii) the refinancing Debt by its terms, or
by the terms of any agreement or instrument pursuant to which
such Debt is issued, (1) does not provide for payments of
principal of such Debt at the Stated Maturity thereof or by
way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase
thereof (including any redemption, defeasance, retirement or
repurchase which is contingent upon events or circumstances,
but excluding any retirement by virtue of acceleration of such
Debt upon any event of default thereunder), in each case prior
to the Stated Maturity of the Debt being refinanced and (2)
does not permit redemption or other retirement (including
pursuant to an offer to purchase) of such Debt at the option
of the holder thereof prior to the final Stated Maturity of
the Debt being refinanced, other than a redemption or other
retirement at the option of the holder of such Debt (including
pursuant to an offer to purchase) which is conditioned upon
provisions substantially similar to those described under
Section 1012 and 1014; and (iv) in the case of any refinancing
of Debt Incurred by the Company, the refinancing Debt may be
Incurred only by the Company, and in the case of any
refinancing of Debt Incurred by a Restricted Subsidiary, the
refinancing Debt may be Incurred by any Restricted Subsidiary
or the Company; and
(i) Debt of the Company or any Restricted Subsidiary arising by
operation of law or (i) consisting of reimbursement
obligations under letters of credit or similar facilities,
(ii) in respect of surety bonds and performance bonds provided
in the ordinary course of business, or (iii) consisting of
guarantees, indemnities, surety or performance bonds or
obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets.
SECTION 1009. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company may not enter into any Sale and Leaseback Transaction
unless the Sale and Leaseback Transaction is treated as an Asset Disposition and
all of the conditions described under Section 1012 (including the provisions
concerning the application of Net
77
Available Proceeds) are satisfied with respect to such Sale and Leaseback
Transaction, treating all of the consideration received in such Sale and
Leaseback Transaction as Net Available Proceeds for purposes of such Section.
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS.
The Company (i) may not, and may not permit any Restricted
Subsidiary of the Company to, directly or indirectly, declare or pay any
dividend or make any distribution (including any payment in connection with any
merger, amalgamation or consolidation derived from assets of the Company or any
Restricted Subsidiary) in respect of its Capital Stock or to the holders
thereof, excluding (a) any dividends or distributions by the Company payable
solely in shares of its Capital Stock (other than Redeemable Stock), and (b) in
the case of a Restricted Subsidiary, dividends or distributions payable (1) to
the Company or a Restricted Subsidiary and (2) to other holders of Capital Stock
of such Restricted Subsidiary, provided that at least a pro rata amount is paid
to the Company and/or a Restricted Subsidiary, as the case may be, except for
any dividend or distribution required to be made to other holders of Capital
Stock of such Restricted Subsidiary pursuant to the terms of such Capital Stock
or any distribution required to be made to other holders of Capital Stock of
such Restricted Subsidiary pursuant to an agreement entered into in the ordinary
course of business, the terms of which expressly contemplate that such
distribution be made without a corresponding pro rata amount being paid to the
Company and/or a Restricted Subsidiary, as the case may be, (ii) may not, and
may not permit any Restricted Subsidiary to, directly or indirectly, purchase,
redeem, or otherwise acquire or retire for value (a) any Capital Stock of the
Company or any Related Person of the Company or (b) any options, warrants or
other rights to acquire Capital Stock of the Company or any Related Person of
the Company or any securities convertible or exchangeable into Capital Stock of
the Company or any Related Person of the Company, excluding Debt of the Company
which is convertible into Capital Stock of the Company, (iii) may not make, or
permit any Restricted Subsidiary to make, any Investment (other than a Permitted
Investment) in any Unrestricted Subsidiary or any Related Person of the Company,
other than an Investment in a Person that will become or be merged into or
amalgamated or consolidated with a Restricted Subsidiary as a result of such
Investment and (iv) may not, and may not permit any Restricted Subsidiary to,
redeem, repurchase, defease or otherwise acquire or retire for value prior to
any scheduled maturity, repayment or sinking fund payment, Debt of the Company
which is subordinate in right of payment to the Securities (each of clauses (i)
through (iv) being a "Restricted Payment") if:
(1) an Event of Default, or an event that with the passing of
time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing or would result from
such Restricted Payment; or
(2) after giving pro forma effect to such Restricted Payment
as if such Restricted Payment had been made at the beginning of the
applicable four-fiscal-quarter period, the Company could not incur
at least Cdn.$1.00 of additional Debt pursuant to the Debt
Incurrence Provisions; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the Series A Issue Date
exceeds the sum of (a) 50% of
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the cumulative Consolidated Net Income (or, in the case the
cumulative Consolidated Net Income shall be negative, less 100% of
such deficit) of the Company from January 1, 2000 through the last
day of the last full fiscal quarter ending immediately preceding the
date of such Restricted Payment for which quarterly or annual
financial statements are available (taken as a single accounting
period), plus (b) 100% of the aggregate net cash proceeds received
by the Company after the Series A Issue Date from contributions of
capital or the issuance and sale (other than to a Restricted
Subsidiary) of Capital Stock (other than Redeemable Stock) of the
Company, options, warrants or other rights to acquire Capital Stock
(other than Redeemable Stock) of the Company and Debt of the Company
that has been converted into or exchanged for Capital Stock (other
than Redeemable Stock and other than by or from a Restricted
Subsidiary) of the Company after the Series A Issue Date, provided
that any such net proceeds received by the Company from an employee
stock ownership plan financed by loans from the Company or a
Restricted Subsidiary of the Company shall be included only to the
extent such loans have been repaid with cash on or prior to the date
of determination, plus (c) an amount equal to the net reduction in
Investments by the Company and its Restricted Subsidiaries,
subsequent to the Series A Issue Date, in any Person subject to
clause (iii) of the first paragraph of this section upon the
disposition, liquidation or repayment (including by way of
dividends) thereof or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries, but only to the extent such
amounts are not included in Consolidated Net Income and not to
exceed in the case of any one Person the amount of Investments
previously made by the Company and its Restricted Subsidiaries in
such Person. Prior to the making of any Restricted Payment the
Company shall deliver to the Trustees an Officers' Certificate
setting forth the computations by which the determinations required
by clauses (2) and (3) above were made and stating that no Event of
Default, or event that with the passing of time or the giving of
notice, or both, would constitute an Event of Default, has occurred
and is continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be continuing or would
result therefrom, (i) the Company and any Restricted Subsidiary of the Company
may pay any dividend on Capital Stock of any class within 60 days after the
declaration thereof if, on the date when the dividend was declared, the Company
or such Restricted Subsidiary could have paid such dividend in accordance with
the foregoing provisions, provided that in no event shall such dividend payment
be more than Cdn.$9,000,000, (ii) the Company may refinance any Debt otherwise
permitted by clause (h) of the second paragraph under Section 1008 or solely in
exchange for or out of the net proceeds of the substantially concurrent sale
(other than from or to a Restricted Subsidiary or from or to an employee stock
ownership plan financed by loans from the Company or a Restricted Subsidiary of
the Company) of shares of Capital Stock (other than Redeemable Stock) of the
Company, (iii) the Company may purchase, redeem, acquire or retire any shares of
Capital Stock of the Company solely in exchange for or out of the net proceeds
of the substantially concurrent sale (other than from or to a Restricted
Subsidiary or from or to an employee stock ownership plan
79
financed by loans from the Company or a Restricted Subsidiary of the Company) of
shares of Capital Stock (other than Redeemable Stock) of the Company, (iv) the
Company may purchase or redeem any Debt from Net Available Proceeds to the
extent permitted under Section 1012, (v) the Company may purchase, redeem, or
declare and pay dividends on, the NRP Shares in accordance with the terms of the
NRP Shares, and (vi) the Company and any Restricted Subsidiary may make payments
or distributions to or in connection with an amalgamation, consolidation, merger
or transfer of assets that complies with the provisions of Section 801. Any
payment made pursuant to clause (i), (ii) or (iii) of this paragraph shall be a
Restricted Payment for purposes of calculating aggregate Restricted Payments
pursuant to the preceding paragraph.
SECTION 1011. LIMITATION ON LIENS.
The Company will not issue, assume or guarantee any Debt for
borrowed money secured by any Lien on any property or assets now owned or
hereafter acquired by the Company without making effective provision whereby any
and all Securities then or thereafter outstanding will be secured by a Lien on
such property or assets equally and ratably with any and all other obligations
thereby secured for so long as any such obligations shall be so secured;
provided that the foregoing restrictions will not apply to Permitted Liens.
SECTION 1012. LIMITATION ON ASSET DISPOSITIONS.
The Company may not, and may not permit any Restricted Subsidiary
to, make any Asset Disposition in one or more related transactions, unless: (i)
the Company or the Restricted Subsidiary, as the case may be, receives
consideration for such disposition at least equal to the fair market value for
the assets sold or disposed of as determined by the Board of Directors in good
faith and evidenced by a Board Resolution filed with the Trustees; (ii) at least
75% of the consideration for such disposition consists of cash or readily
marketable cash equivalents and (iii) all Net Available Proceeds, less any
amounts invested within 360 days of such disposition in assets related to the
business of the Company and its Restricted Subsidiaries or applied within 360
days of such disposition to the payment of Debt of the Company or a Restricted
Security, are applied within 360 days of such disposition (1) first, to make an
Offer to Purchase Outstanding Securities at 100% of their principal amount plus
accrued interest to the date of purchase and, to the extent required by the
terms thereof, any other Debt of the Company that is pari passu with the
Securities at a price no greater than 100% of the principal amount thereof plus
accrued interest to the date of purchase, and (2) second, to the extent of any
remaining Net Available Proceeds, to any other use as determined by the Company
which is not otherwise prohibited by this Indenture.
Notwithstanding the foregoing, the Company shall not be required to
purchase more than 25% of the original aggregate principal amount of the
Securities in the aggregate pursuant to clause (1) above prior to the day
following the fifth anniversary of the Series A Issue Date, and the maximum
amount to be applied to the purchase of the Securities in connection with any
Offer to Purchase made pursuant to clause (1) above having a purchase date prior
to the day following the fifth anniversary of the Series A Issue Date shall be
the lesser of (x) the remaining Net Available Proceeds required to be applied to
such Offer to Purchase and (y) 25% of the original principal amount of the
Securities less the aggregate principal amount of
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Securities purchased pursuant to all previous Offers to Purchase made pursuant
to clause (1), provided, however, that the Company shall be required, promptly
after the fifth anniversary of the Series A Issue Date, to make an Offer to
Purchase Securities, in accordance with the requirements described in clause
(i), in an aggregate amount equal to the aggregate amount of Net Available
Proceeds in excess of 25% of the original principal amount of Securities that
was not applied to Offers to Purchase Securities pursuant to the provisions of
this paragraph.
SECTION 1013. TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS.
The Company may not, and may not permit any Restricted Subsidiary
to, enter into any transaction (or series of related transactions) with an
Affiliate or Related Person of the Company (other than the Company or a
Restricted Subsidiary), other than in the ordinary course of business, either
directly or indirectly, unless such transaction is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate or
Related Person of the Company or such Restricted Subsidiary and is in the best
interests of the Company or such Restricted Subsidiary; provided that the
foregoing restrictions will not apply to transactions (or series of related
transactions) carried out pursuant to arrangements entered into prior to the
date of this Indenture or undertakings, agreements or instruments entered into
in connection with such arrangements after such date. For any transaction
required to satisfy the above criteria that involves in excess of Cdn.$2,000,000
but less than or equal to Cdn.$5,000,000, the Chief Executive Officer or Chief
Financial Officer of the Company shall determine that the transaction satisfies
the above criteria and shall evidence such a determination by a certificate
filed with the Trustees. For any such transaction that involves in excess of
Cdn.$5,000,000, a majority of the disinterested members of the Board of
Directors shall determine that the transaction satisfies the above criteria and
shall evidence such a determination by a Board Resolution filed with the
Trustees. For any such transaction that involves in excess of Cdn.$10,000,000,
the Company shall also obtain an opinion from a nationally recognized expert in
the United States or Canada with experience in appraising the terms and
conditions of the type of transaction (or series of related transactions) for
which the opinion is required stating that such transaction (or series of
related transactions) is on terms no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or Related
Person of the Company, which opinion shall be filed with the Trustees. The
foregoing requirements shall not apply to any transaction pursuant to agreements
or arrangements in existence on the date of this Indenture.
SECTION 1014. CHANGE OF CONTROL.
Within 30 days of the occurrence of a Change of Control Triggering
Event, the Company will be required to make an Offer to Purchase all Outstanding
Securities at a purchase price equal to 101% of their principal amount plus
accrued interest to the date of purchase. A "Change of Control Triggering Event"
will be deemed to have occurred if both a Change of Control and a Rating Decline
occur. A "Change of Control" will be deemed to have occurred at such time as
either (a) any Person or any Persons acting together that would constitute a
"group" (a "Group") for purposes of Section 13(d) of the Exchange Act, or any
successor provision thereto, together with any Affiliate or Related Persons
thereof, shall beneficially own (within the
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meaning of Rule 13d-3 under the Exchange Act, or any successor provision
thereto) more than 50% of the aggregate voting power of all classes of Voting
Stock of the Company; or (b) any Person or Group, together with any Affiliates
or Related Persons thereof, shall succeed in having a sufficient number of its
nominees elected to the Board of Directors such that such nominees, when added
to any existing director remaining on the Board of Directors after such
election, who was a nominee of or is an Affiliate or Related Person of such
Person or Group, will constitute a majority of the Board of Directors. A "Rating
Decline" will be deemed to have occurred if at any time within 90 days (which
period shall be extended so long as the rating of the Securities is under
publicly announced consideration for a possible downgrade by any Rating Agency)
after the date of public notice of a Change of Control, or the intention of the
Company or any Person to effect a Change of Control, the rating of the
Securities, the Series A Notes or the Company's 9.75% Senior Notes due 2008 is
decreased by any Rating Agency by one or more Gradations and the rating by such
Rating Agency on the Securities, the Series A Notes or the Company's 9.75%
Senior Notes due 2008, following such downgrade is below Investment Grade. In
the event that none of the Securities, the Series A Notes or the Company's 9.75%
Senior Notes due 2008 are rated by any of the Rating Agencies, and a Change of
Control shall have occurred, the Company shall obtain from one of the Rating
Agencies pro forma ratings on the Securities both prior to and within 90 days
after the date of public notice of the Change of Control, or the intention of
the Company or any Person to effect a Change of Control. A Rating Decline will
be deemed to have occurred in such circumstances if such latter pro forma rating
reflects a decrease from such former pro forma rating by such Rating Agency of
one or more Gradations and such latter pro forma rating by such Rating Agency on
the Securities following the Change of Control is below Investment Grade.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 1015. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is required to be subject to Section
13(a) or 15(d) of the Exchange Act or any successor provision thereto, the
Company shall file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if the Company were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so required. The Company shall also in any event (a) within 15 days
of each Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register without cost to such Holders, and
(ii) file with the Trustees, copies of the annual reports, quarterly reports and
other documents which the Company files with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto or would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provisions thereto if the Company were required to be subject to
such sections and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder.
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SECTION 1016. PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by or on behalf of the Company under or with
respect to the Securities will be made free and clear of and without withholding
or deduction for, or on account of, any present or future tax, duty, levy,
impost, assessment or other governmental charge 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 (hereinafter
"Taxes"), unless the Company or other payer is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. If the Company
or other payer is so required to withhold or deduct any amount for or on account
of Taxes from any payment made under or with respect to the Securities, the
Company or other payer will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder (including
Additional Amounts) after such withholding or deduction will not be less than
the amount the Holder would have received if such Taxes had not been withheld or
deducted, provided that no Additional Amounts will be payable with respect to a
payment made to a Holder in respect of a beneficial owner of Securities (an
"Excluded Holder") (i) with which the Company does not deal at arm's length
(within the meaning of the Income Tax Act (Canada)) at the time of making such
payment or (ii) which is subject to such Taxes by reason of any connection
between such beneficial owner and Canada or any province or territory thereof
other than the mere holding of Securities or the receipt of payments thereunder.
The Company will also (i) make such withholding or deduction and (ii) remit the
full amount deducted or withheld to the relevant authority in accordance with
and in the time required by applicable law. The Company will furnish to the
Holders of the Securities, within 30 days after the date the payment of any
Taxes is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Company. The Company will indemnify and hold
harmless each Holder (other than all Excluded Holders) for the amount of (i) any
Taxes not withheld or deducted by the Company and levied or imposed and paid by
such Holder or beneficial owner as a result of payments made under or with
respect to the Securities, (ii) any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed
with respect to any reimbursement under clauses (i) or (ii) above. Holders shall
be required to complete and file any applicable forms with, or provide
certification to, the relevant tax authorities as requested by the Company.
At least 30 days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Company is aware that
it will be obligated to pay Additional Amounts with respect to such payment, the
Company will deliver to the Trustees an Officers' Certificate stating the fact
that such Additional Amounts will be payable, the amounts so payable and will
set forth such other information necessary to enable the Trustees to pay such
Additional Amounts to Holders on the payment date. Whenever in this Indenture
there is mentioned, in any context, the payment of principal (and premium, if
any), interest or any other amount payable under or with respect to any
Security, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
The foregoing provisions shall survive any defeasance or termination
of obligations pursuant to this Indenture or any termination of this Indenture.
83
SECTION 1017. STATEMENT AS TO COMPLIANCE.
The Company shall each deliver to the Trustees, within 75 days after
the end of each fiscal year ending after the date hereof (the fiscal year as of
the date hereof is the fiscal year ended June 30) (or within such shorter time
period as may be required by Trust Indenture Legislation), a brief certificate
of its principal executive officer, principal financial officer or principal
accounting officer stating whether, to such officer's knowledge, the Company is
in compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1017, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
When a Default has occurred and is continuing or if the Trustees,
any Holder or the trustee for or the holder of any other evidence of Debt for
money borrowed by the Company or any Restricted Subsidiary gives any notice or
takes any other action with respect to a claimed default, the Company shall
deliver to the Trustees an Officers' Certificate specifying such Default, notice
or other action within 10 Business Days of its occurrence.
SECTION 1018. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005 through Section 1015 if, before
or after the time for such compliance, the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding shall, by Act of such
Holders, waive such compliance in such instance with such covenant or condition,
but no such waiver shall extend to or affect such covenant 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 in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 1019. FALL-AWAY EVENT.
In the event that the Securities are rated Investment Grade by
▇▇▇▇▇'▇ and S&P and no Event of Default or Default shall have occurred and be
continuing (the occurrence of the foregoing events, being collectively referred
to as the "Fall-away Event"), upon the request of the Company, Sections 1008,
1009, 1010, 1012, 1013, 1014 and clauses (iii) and (iv) of Section 801 will no
longer be applicable to the Company and its Restricted Subsidiaries and the
Trustees will, if requested by the Company, enter into a supplemental indenture
with the Company to evidence and reflect such Fall-away Event.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
(a) The Securities will be redeemable, at the option of the Company,
in whole or from time to time in part, at any time on or after February 1, 2005
and prior to maturity upon
84
not less than 30 and not more than 60 days' notice mailed to each Holder of
Securities to be redeemed at the Holder's address appearing in the Securities
Register, in amounts of U.S.$1,000 or an integral multiple of U.S.$1,000, at the
Redemption Prices specified in the form of Security hereinbefore set forth
together with accrued interest to the Redemption Date.
(b) The Securities will be subject to the redemption at the option
of the Company, as a whole but not in part, at any time upon not less than 30
nor more than 60 days' notice mailed to each Holder in the manner provided in
Section 107 at a Redemption Price equal to 100% of the principal amount of the
Securities plus accrued interest but excluding the Redemption Date if the
Company has become or would become obligated to pay on the next date on which
any amount would be payable under or with respect to the Securities, any
Additional Amounts as a result of any change or amendment to the laws (or
regulations promulgated thereunder) of Canada (or any political subdivision or
taxing authority thereof or therein), or any change in or interpretation or
administration of such laws or regulations by the relevant taxing authority,
which change or amendment is announced or becomes effective on or after the date
hereof.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEES.
The election of the Company to redeem the Securities or any part
thereof pursuant to Section 1101 shall be evidenced by a Board Resolution. In
case of any redemption, the Company shall, at least 60 days prior to the
Redemption Date for such redemption (unless a shorter notice period shall be
satisfactory to the Trustees), notify the Trustees of such Redemption Date and
of the principal amount of Securities to be redeemed. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Company to the effect that such redemption shall comply with the conditions
herein.
SECTION 1104. SELECTION BY TRUSTEES OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed or a Redemption
Date, the particular Securities to be redeemed shall be selected not more than
60 days prior to such Redemption Date by the Trustees, from the Outstanding
Securities 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; provided, however, that
no such partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than U.S.$1,000. Securities and any portions of
such Securities selected by the Trustees shall be in amounts of U.S.$1,000 or
integral multiples thereof.
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.
85
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to 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.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the principal amount of each Security held by such Holder to be
redeemed;
(b) the Redemption Date;
(c) the Redemption Price;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest thereon shall cease
to accrue on and after said date;
(e) the CUSIP number;
(f) if fewer than all of the Outstanding Securities are to be
redeemed, then the identification and principal amounts at Maturity of the
particular Securities to be redeemed; and
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at their request, by the Trustees in the name and at the expense
of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit or
cause to be deposited 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 same day funds (or New York Clearing House
funds if such deposit is made prior to the applicable Redemption Date)
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
86
SECTION 1107. 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 and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest 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 on the relevant Regular Record Dates according to the terms and the
provisions of Section 309.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at the rate
borne by such Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part shall be
surrendered to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 1002 (with, if the Company or the
Trustees so require, 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 the Trustees shall authenticate and deliver to the Holder of
such Security, without service charge, a replacement Security or Securities, of
any authorized denomination as requested by such Holder in an aggregate
principal amount equal to, and in exchange for, the principal amount of the
Security so surrendered that is not redeemed.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
SECTION 1201. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to:
(1) rights of registration of transfer and exchange and the
Company's right of optional redemption;
(2) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities;
(3) rights of Holders to receive payment of principal and
interest and Additional Amounts on the Securities;
87
(4) rights, obligations and immunities of the Trustees under
this Indenture; and
(5) rights of the Holders of the Securities as beneficiaries
of this Indenture with respect to any property deposited with the
Trustees payable to all or any of them),
and the Trustees, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when:
(1) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 308) have
been delivered to the Trustees for cancellation;
(2) the Company has paid or caused to be paid the principal of
and interest on the Securities and when the same will have become
due and payable, as well as 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 have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustees under Section 607 shall survive.
This Indenture may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Indenture.
88
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.
INTRAWEST CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Corporate Secretary
JPMORGAN CHASE BANK, as U.S. Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
CIBC MELLON TRUST COMPANY, as Canadian Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇ Sulymka
-----------------------------------------
Name: ▇▇▇▇▇▇ Sulymka
Title: Authorized Signatory
89
EXHIBIT A-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
UNRESTRICTED GLOBAL SECURITY
JPMorgan Chase Bank
c/o ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIBC Mellon Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Re: 10.50% Senior Notes due February 1, 2010 of Intrawest Corporation
Reference is hereby made to the Indenture, dated as of September 18,
2002 (the "Indenture"), between Intrawest Corporation as issuer (the "Company"),
and JPMorgan Chase Bank, as U.S. trustee, and CIBC Mellon Trust Company, as
Canadian trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to U.S.$_______ principal amount of Securities
which are evidenced by the Restricted Global Security (CUSIP No. __________) and
held with the Depositary in the name of ____________________ (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Unrestricted Global Security
(CUSIP No. __________).
In connection with such request and in respect of such Securities,
the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Securities
and pursuant to and in accordance with Rule 903, Rule 904 or Rule 144 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed and
believes that the transferee was outside the United States;
or
90
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
(B) If the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144 under
the Securities Act.
Upon giving effect to this request to exchange a beneficial interest
in such Restricted Global Security for a beneficial interest in the Unrestricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the Unrestricted Global Security, if any,
pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company. Terms used in this certificate and
not otherwise defined in the Indenture have the meanings set forth in Regulation
S under the Securities Act.
[Insert Name of Transferor]
By: ____________________________________
Name:
Title:
Dated: ____________, ____
91
EXHIBIT A-2
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
JPMorgan Chase Bank
c/o ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIBC Mellon Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Re: 10.50% Senior Notes due February 1, 2010 of Intrawest Corporation
Reference is hereby made to the Indenture, dated as of September 18,
2002 (the "Indenture"), between Intrawest Corporation as issuer (the "Company"),
and JPMorgan Chase Bank, as U.S. trustee, and CIBC Mellon Trust Company, as
Canadian trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
[For transfers: This letter relates to U.S.$____________ principal
amount of Securities which are evidenced by the Restricted Global Security
(CUSIP No. ____________) and held with the Depositary in the name of
______________________ [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Unrestricted Global Security (CUSIP No. ____________).
In connection with such request and in respect of such Securities,
the Beneficial Owner does hereby certify that upon such transfer, (a) a period
of at least two years will have elapsed since September 18, 2002, (b) the
Beneficial Owner during the three months preceding the date of such transfer was
not an "affiliate" of the Company (as defined in Rule 144 under the Securities
Act), and it was not acting on behalf of such an affiliate and (c) such Person
to whom such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to U.S.$_______________
principal amount of Securities that are evidenced by the Restricted Global
Security (CUSIP No. __________) and held with the Depositary in the name of
[___________________] [and held for the benefit of ______________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be exchanged for a beneficial interest in an equal
principal amount of Securities evidenced by the Unrestricted Global Security
(CUSIP No._____________________).
In connection with such request and in respect of such Securities,
the Beneficial Owner does hereby certify that, upon such exchange, (a) it will
be the beneficial owner of such Securities, (b) a period of at least two years
will have elapsed since September 18, 2002 and (c) the Beneficial Owner will not
be, and during the three months preceding the date of such
92
exchange will not have been, an "affiliate" of the Company (as defined in Rule
144 under the Securities Act), and it is not acting on behalf of such an
affiliate.]
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By: ______________________________________
Name:
Title:
93
TABLE OF CONTENTS
PAGE
Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................2
Section 101. Definitions......................................................................................2
"Additional Securities"....................................................................................3
"Affiliate"................................................................................................3
"Agent Member".............................................................................................3
"Applicable Procedure".....................................................................................3
"Asset Disposition"........................................................................................3
"Bankruptcy Laws"..........................................................................................4
"Board of Directors".......................................................................................4
"Board Resolution".........................................................................................4
"Business Day".............................................................................................4
"Canadian Dollars" and "Cdn.$".............................................................................4
"Canadian Trustee".........................................................................................4
"Capital Lease Obligation".................................................................................4
"Capital Stock"............................................................................................4
"Commission"...............................................................................................5
"Common Stock".............................................................................................5
"Company"..................................................................................................5
"Company Request" or "Company Order".......................................................................5
"consolidated".............................................................................................5
"Consolidated Cash Flow Available for Fixed Charges".......................................................5
"Consolidated Cash Flow Coverage Ratio"....................................................................5
"Consolidated Debt"........................................................................................6
"Consolidated Fixed Charges"...............................................................................6
"Consolidated Income Tax Expense"..........................................................................6
"Consolidated Net Debt"....................................................................................6
"Consolidated Net Debt Ratio"..............................................................................6
"Consolidated Net Income"..................................................................................7
"Consolidated Net Interest Expense"........................................................................7
"Consolidated Net Tangible Assets".........................................................................7
"Consolidated Net Worth"...................................................................................7
"Consolidated Preferred Share Amounts".....................................................................8
"Corporate Trust Office"...................................................................................8
"DBRS".....................................................................................................8
"Debt".....................................................................................................8
"Default"..................................................................................................8
"Depositary" or "DTC"......................................................................................8
"Dollars", "United States Dollars", "U.S. Dollars" or "U.S.$"..............................................8
"Event of Default".........................................................................................8
"Exchange Act".............................................................................................8
"Exchange Offer"...........................................................................................9
"Exchange Offer Registration Statement"....................................................................9
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"Exchange Securities"......................................................................................9
"generally accepted accounting principles".................................................................9
"Gradation"................................................................................................9
"Guarantee"................................................................................................9
"Holder"...................................................................................................9
"Incur"....................................................................................................9
"Indenture"...............................................................................................10
"Initial Securities"......................................................................................10
"Interest Payment Date"...................................................................................10
"Investment"..............................................................................................10
"Investment Company Act"..................................................................................10
"Investment Grade"........................................................................................10
"IPP Excluded Debt".......................................................................................10
"IPP Guarantees"..........................................................................................10
"Lien"....................................................................................................11
"Limited Recourse Notes"..................................................................................11
"Maturity"................................................................................................11
"▇▇▇▇▇'▇".................................................................................................11
"Net Available Proceeds"..................................................................................11
"Non-Recourse Debt".......................................................................................11
"NRP Shares"..............................................................................................12
"Obligations".............................................................................................12
"Offer to Purchase".......................................................................................12
"Officers' Certificate"...................................................................................14
"Opinion of Counsel"......................................................................................14
"Outstanding".............................................................................................14
"Paying Agent"............................................................................................15
"Permitted Interest Rate or Currency Protection Agreement"................................................15
"Permitted Investment"....................................................................................15
"Permitted Liens".........................................................................................15
"Person"..................................................................................................16
"Predecessor Security"....................................................................................16
"Preferred Shares"........................................................................................16
"Project".................................................................................................17
"Qualifying Construction Loan"............................................................................17
"Qualifying Project"......................................................................................17
"Rating Agencies".........................................................................................17
"Rating Categories".......................................................................................17
"Redeemable Stock"........................................................................................17
"Redemption Date".........................................................................................17
"Redemption Price"........................................................................................18
"Registration Default"....................................................................................18
"Registration Default Record".............................................................................18
"Registration Rights Agreement"...........................................................................18
"Registration Statement"..................................................................................18
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"Regular Record Date".....................................................................................18
"Regulation S"............................................................................................18
"Related Person"..........................................................................................18
"Responsible Officer".....................................................................................18
"Restricted Subsidiary"...................................................................................18
"S&P".....................................................................................................18
"Sale and Leaseback Transaction"..........................................................................18
"Securities Act"..........................................................................................19
"Special Record Date".....................................................................................19
"Security" and "Securities"...............................................................................19
"Shelf Registration Statement"............................................................................19
"Stated Maturity".........................................................................................19
"Subsidiary"..............................................................................................19
"Taxing Authority"........................................................................................20
"Trust Indenture Act" or "TIA"............................................................................20
"Trust Indenture Legislation".............................................................................20
"Trustee" or "Trustees"...................................................................................20
"U.S. Trustee"............................................................................................20
"Unrestricted Subsidiary".................................................................................20
"Voting Stock"............................................................................................21
"Wholly Owned Restricted Subsidiary"......................................................................21
Section 102. Other Definitions...............................................................................21
Section 103. Compliance Certificates and Opinions............................................................22
Section 104. Form of Documents Delivered to Trustees.........................................................22
Section 105. Acts of Holders.................................................................................23
Section 106. Notices, Etc., to Trustees and Company..........................................................24
Section 107. Notice to Holders; Waiver.......................................................................24
Section 108. Effect of Headings and Table of Contents........................................................25
Section 109. Successors and Assigns..........................................................................25
Section 110. Severability Clause.............................................................................25
Section 111. Benefits of Indenture...........................................................................25
Section 112. Governing Law...................................................................................25
Section 113. Legal Holidays..................................................................................26
Section 114. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.............................26
Section 115. Conversion of Currency..........................................................................27
Section 116. Currency Equivalent.............................................................................28
Section 117. No Recourse Against Others......................................................................28
Section 118. Reliance on Financial Data......................................................................28
Article Two SECURITY FORMS......................................................................................29
Section 201. Forms Generally.................................................................................29
Section 202. Restrictive Legends.............................................................................30
Section 203. Form of Face of Security........................................................................30
Section 204. Form of Reverse of Security.....................................................................35
Section 205. Form of Trustee's Certificate of Authentication.................................................38
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Article Three THE SECURITIES....................................................................................39
Section 301. Title and Terms.................................................................................39
Section 302. Denominations...................................................................................40
Section 303. Execution, Authentication, Delivery and Dating..................................................40
Section 304. Temporary Securities............................................................................41
Section 305. Registration, Registration of Transfer and Exchange.............................................41
Section 306. Book-Entry Provisions for Global Securities.....................................................43
Section 307. Special Transfer Provisions.....................................................................45
Section 308. Mutilated, Destroyed, Lost and Stolen Securities................................................47
Section 309. Payment of Interest; Interest Rights Preserved..................................................47
Section 310. Persons Deemed Owners...........................................................................48
Section 311. Cancellation....................................................................................49
Section 312. Computation of Interest.........................................................................49
Section 313. CUSIP Numbers...................................................................................49
Article Four DEFEASANCE AND COVENANT DEFEASANCE.................................................................49
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance....................................49
Section 402. Defeasance and Discharge........................................................................50
Section 403. Covenant Defeasance.............................................................................50
Section 404. Conditions to Defeasance or Covenant Defeasance.................................................51
Section 405. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions...................................................................................................53
Section 406. Reinstatement...................................................................................53
Article Five REMEDIES...........................................................................................54
Section 501. Events of Default...............................................................................54
Section 502. Acceleration of Maturity; Rescission and Annulment..............................................55
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustees................................56
Section 504. Trustees May File Proofs of Claim...............................................................57
Section 505. Trustees May Enforce Claims Without Possession of Securities....................................58
Section 506. Application of Money Collected..................................................................58
Section 507. Limitation on Suits.............................................................................58
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.......................59
Section 509. Restoration of Rights and Remedies..............................................................59
Section 510. Rights and Remedies Cumulative..................................................................59
Section 511. Delay or Omission Not Waiver....................................................................60
Section 512. Control by Holders..............................................................................60
Section 513. Waiver of Past Defaults.........................................................................60
Section 514. Undertaking for Costs...........................................................................60
Section 515. Waiver of Stay, Extension or Usury Laws.........................................................61
Article Six THE TRUSTEES........................................................................................61
Section 601. Joint Trustees..................................................................................61
Section 602. Notice of Defaults..............................................................................61
Section 603. Certain Rights of Trustees......................................................................62
Section 604. Not Responsible for Recitals or Issuance of Securities..........................................63
Section 605. May Hold Securities.............................................................................63
Section 606. Money Held in Trust.............................................................................63
Section 607. Compensation and Reimbursement..................................................................64
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Section 608. Conflicting Interests...........................................................................64
Section 609. Corporate Trustees Required; Eligibility........................................................65
Section 610. Resignation and Removal; Appointment of Successor...............................................65
Section 611. Acceptance of Appointment by Successor..........................................................67
Section 612. Merger, Conversion, Consolidation or Succession to Business.....................................67
Article Seven HOLDERS' LISTS AND REPORTS BY TRUSTEES AND COMPANY................................................67
Section 701. Disclosure of Names and Addresses of Holders....................................................67
Article Eight AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................68
Section 801. Company May Amalgamate, Etc., Only on Certain Terms.............................................68
Section 802. Successor Substituted...........................................................................69
Article Nine SUPPLEMENTS AND AMENDMENTS TO INDENTURE............................................................69
Section 901. Supplemental Indentures and Amendments Without Consent of Holders...............................69
Section 902. Supplemental Indentures and Certain Amendments with Consent of Holders..........................70
Section 903. Execution of Supplemental Indentures............................................................71
Section 904. Effect of Supplemental Indentures...............................................................71
Section 905. Reference in Securities to Supplemental Indentures..............................................71
Section 906. Notice of Supplemental Indentures...............................................................71
Section 907. Conformity with Trust Indenture Legislation.....................................................71
Article Ten COVENANTS...........................................................................................72
Section 1001. Payment of Principal, Premium and Interest.....................................................72
Section 1002. Maintenance of Office or Agency................................................................72
Section 1003. Money for Security Payments to Be Held in Trust................................................72
Section 1004. Corporate Existence............................................................................73
Section 1005. Payment of Taxes and Other Claims..............................................................74
Section 1006. Maintenance of Properties......................................................................74
Section 1007. Maintenance of Insurance.......................................................................74
Section 1008. Limitation on Debt and Preferred Shares........................................................74
Section 1009. Limitation on Sale and Leaseback Transactions..................................................77
Section 1010. Limitation on Restricted Payments..............................................................78
Section 1011. Limitation on Liens............................................................................80
Section 1012. Limitation on Asset Dispositions...............................................................80
Section 1013. Transactions with Affiliates and Related Persons...............................................81
Section 1014. Change of Control..............................................................................81
Section 1015. Provision of Financial Information.............................................................82
Section 1016. Payment of Additional Amounts..................................................................83
Section 1017. Statement as to Compliance.....................................................................84
Section 1018. Waiver of Certain Covenants....................................................................84
Section 1019. Fall-away Event................................................................................84
Article Eleven REDEMPTION OF SECURITIES.........................................................................84
Section 1101. Right of Redemption............................................................................84
Section 1102. Applicability of Article.......................................................................85
Section 1103. Election to Redeem; Notice to Trustees.........................................................85
Section 1104. Selection by Trustees of Securities to Be Redeemed.............................................85
Section 1105. Notice of Redemption...........................................................................86
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Section 1106. Deposit of Redemption Price....................................................................86
Section 1107. Securities Payable on Redemption Date..........................................................87
Section 1108. Securities Redeemed in Part....................................................................87
Article Twelve SATISFACTION AND DISCHARGE.......................................................................87
Section 1201. Satisfaction and Discharge of Indenture........................................................87
TESTIMONIUM
SIGNATURES AND SEALS
EXHIBITS
A-1 - Form of Certificate for Exchange or Registration of Transfer
From Restricted Global Security to Unrestricted Global Security
A-2 - Form of Certificate for Transfer or Exchange After Two Years
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