Exhibit 99.1
MANULIFE FINANCIAL CORPORATION
TO
THE BANK OF NEW YORK MELLON
Trustee
SENIOR INDENTURE
Dated as
of
September 17, 2010
TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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SECTION 101. Definitions
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1
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Act
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2
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Additional Amounts
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2
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Affiliate
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2
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Authenticating Agent
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2
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Base Currency
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2
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Board of Directors
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2
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Board Resolution
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2
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branch register
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2
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Branch Security Registrar
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2
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Business Day
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2
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Canadian GAAP
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2
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Central Register
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3
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Central Security Registrar
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3
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Commission
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3
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Company
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3
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Company Request and Company Order
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3
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Corporate Trust Office
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3
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corporation
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3
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Covenant Defeasance
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3
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Defaulted Interest
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3
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Defeasance
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3
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Depositary
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3
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Dollars
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3
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Event of Default
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4
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Exchange Act
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4
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Expiration Date
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4
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Global Security
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4
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Holder
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4
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Indebtedness
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4
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Indenture
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4
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Insurance Companies Act
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4
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Interest Payment Date
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4
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Interest Rate
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5
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Investment Company Act
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5
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John Hancock (USA)
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5
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Judgment Currency
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5
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Maturing Security
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5
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i
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Page
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Maturity
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5
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MLI
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5
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Notice of Default
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5
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Officers Certificate
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5
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Opinion of Counsel
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5
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Original Issue Date
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5
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Original Issue Discount Security
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5
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Outstanding
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5
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Paying Agent
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6
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Person
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7
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Place of Payment
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7
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Predecessor Security
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7
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Purchasing Subsidiary
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7
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rate(s) of exchange
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7
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Redemption Date
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7
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Redemption Price
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7
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Regular Record Date
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7
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Relevant Taxes
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7
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Responsible Officer
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7
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Restricted Subsidiary
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7
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Securities or Security
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7
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Securities Act
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7
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Security Register and Security Registrar
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8
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Special Record Date
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8
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Stated Maturity
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8
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Subsidiary
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8
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Subsidiary Transfer
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8
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Superintendent
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8
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Tax Act
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8
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Trust Indenture Act
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8
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Trustee
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8
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U.S. Government Obligations
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8
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Vice President
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9
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SECTION 102.
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Compliance Certificates and Opinions
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9
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SECTION 103.
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Form of Documents Delivered to Trustee
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9
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SECTION 104.
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Acts of Holders; Record Dates
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10
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SECTION 105.
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Notices, Etc., to Trustee and Company
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12
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SECTION 106.
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Notice to Holders; Waiver
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13
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SECTION 107.
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Conflict with Trust Indenture Act
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13
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SECTION 108.
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Effect of Headings and Table of Contents
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13
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SECTION 109.
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Successors and Assigns
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14
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SECTION 110.
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Separability Clause
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14
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SECTION 111.
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Benefits of Indenture
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14
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SECTION 112.
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Governing Law
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14
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SECTION 113.
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Legal Holidays
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14
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SECTION 114.
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Computations
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14
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ii
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Page
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SECTION 115.
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Conversion of Currency
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15
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SECTION 116.
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Agency for Service; Submission to Jurisdiction; Waiver of Immunities
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16
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SECTION 117.
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Incorporators, Shareholders, Officers and Directors of the Company Exempt
from Individual Liability
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16
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SECTION 118.
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References to Statutes
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17
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SECTION 119.
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Waiver of Jury Trial
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17
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SECTION 120.
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Force Majeure
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17
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ARTICLE TWO SECURITY FORMS
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17
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SECTION 201.
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Forms Generally
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17
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SECTION 202.
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Form of Legend for Global Securities
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18
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SECTION 203.
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Form of Trustees Certificate of Authentication
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19
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ARTICLE THREE THE SECURITIES
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19
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SECTION 301.
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Title; Terms
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19
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SECTION 302.
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Denominations
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21
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SECTION 303.
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Execution, Authentication, Delivery and Dating
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21
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SECTION 304.
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Temporary Securities
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23
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SECTION 305.
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Registration, Registration of Transfer and Exchange
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23
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SECTION 306.
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Mutilated, Destroyed, Lost and Stolen Securities
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26
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SECTION 307.
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Payment of Interest; Interest Rights Preserved
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27
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SECTION 308.
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Persons Deemed Owners
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28
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SECTION 309.
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Cancellation
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29
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SECTION 310.
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Computation of Interest
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29
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SECTION 311.
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CUSIP Numbers
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29
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ARTICLE FOUR SATISFACTION AND DISCHARGE
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30
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SECTION 401.
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Satisfaction and Discharge of Indenture
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30
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SECTION 402.
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Application of Trust Money
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31
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SECTION 403.
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Purchase of Maturing Securities
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31
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ARTICLE FIVE REMEDIES
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33
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SECTION 501.
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Events of Default
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33
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SECTION 502.
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Acceleration of Maturity; Rescission and Annulment
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34
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SECTION 503.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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35
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SECTION 504.
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Trustee May File Proofs of Claim
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35
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SECTION 505.
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Trustee May Enforce Claims Without Possession of Securities
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36
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SECTION 506.
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Application of Money Collected
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36
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SECTION 507.
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Limitation on Suits
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37
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SECTION 508.
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Unconditional Right of Holders to Receive Principal, Premium and
Interest
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37
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SECTION 509.
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Restoration of Rights and Remedies
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38
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iii
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Page
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SECTION 510.
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Rights and Remedies Cumulative
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38
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SECTION 511.
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Delay or Omission Not Waiver
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38
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SECTION 512.
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Control by Holders
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38
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SECTION 513.
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Waiver of Past Defaults
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39
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SECTION 514.
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Undertaking for Costs
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39
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SECTION 515.
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Waiver of Usury, Stay or Extension Laws
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39
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ARTICLE SIX THE TRUSTEE
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40
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SECTION 601.
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Certain Duties and Responsibilities
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40
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SECTION 602.
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Notice of Defaults
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41
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SECTION 603.
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Certain Rights of Trustee
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41
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SECTION 604.
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Not Responsible for Recitals or Issuance of Securities
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43
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SECTION 605.
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May Hold Securities
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43
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SECTION 606.
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Money Held in Trust
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43
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SECTION 607.
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Compensation and Reimbursement
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44
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SECTION 608.
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Disqualification; Conflicting Interests
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44
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SECTION 609.
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Corporate Trustee Required; Eligibility
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45
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SECTION 610.
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Resignation and Removal; Appointment of Successor
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45
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SECTION 611.
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Acceptance of Appointment by Successor
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46
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SECTION 612.
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Merger, Conversion, Consolidation or Succession to Business
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47
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SECTION 613.
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Preferential Collection of Claims Against Company
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48
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SECTION 614.
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Appointment of Authenticating Agent
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48
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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50
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SECTION 701.
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Company to Furnish Trustee Names and Addresses of Holders
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50
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SECTION 702.
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Preservation of Information; Communications to Holders
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50
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SECTION 703.
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Reports by Trustee
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51
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SECTION 704.
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Reports by Company
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51
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ARTICLE EIGHT CONSOLIDATION, MERGER, AMALGAMATION, CONVEYANCE, STATUTORY ARRANGEMENT, TRANSFER OR LEASE
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52
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SECTION 801.
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Company May Consolidate, Etc., Only on Certain Terms
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52
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SECTION 802.
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Successor Person Substituted
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53
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ARTICLE NINE SUPPLEMENTAL INDENTURES
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53
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SECTION 901.
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Supplemental Indentures Without Consent of Holders
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53
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SECTION 902.
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Supplemental Indentures With Consent of Holders
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54
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SECTION 903.
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Execution of Supplemental Indentures
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55
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SECTION 904.
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Effect of Supplemental Indentures
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56
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SECTION 905.
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Conformity with Trust Indenture Act
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56
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iv
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Page
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SECTION 906.
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Reference in Securities to Supplemental Indentures
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56
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ARTICLE TEN COVENANTS
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56
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SECTION 1001.
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Payment of Principal, Premium and Interest
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56
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SECTION 1002.
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Maintenance of Office or Agency
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57
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SECTION 1003.
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Money for Securities Payments to Be Held in Trust
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57
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SECTION 1004.
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Statement by Officers as to Default
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58
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SECTION 1005.
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Existence
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59
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SECTION 1006.
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Maintenance of Properties
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59
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SECTION 1007.
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Payment of Taxes
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59
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SECTION 1008.
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Limitations on Liens of Stock of Restricted Subsidiaries
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59
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SECTION 1009.
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Waiver of Certain Covenants
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60
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SECTION 1010.
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Additional Amounts
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61
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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63
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SECTION 1101.
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Companys Right of Redemption
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63
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SECTION 1102.
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Applicability of Article
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63
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SECTION 1103.
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Election to Redeem; Notice to Trustee
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63
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SECTION 1104.
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Selection by Trustee of Securities to Be Redeemed
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64
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SECTION 1105.
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Notice of Redemption
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64
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SECTION 1106.
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Deposit of Redemption Price
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65
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SECTION 1107.
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Securities Payable on Redemption Date
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65
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SECTION 1108.
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Securities Redeemed in Part
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66
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SECTION 1109.
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Tax Redemption
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66
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ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE
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67
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SECTION 1201.
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Companys Option to Effect Defeasance or Covenant Defeasance
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67
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SECTION 1202.
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Defeasance and Discharge
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67
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SECTION 1203.
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Covenant Defeasance
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67
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SECTION 1204.
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Conditions to Defeasance or Covenant Defeasance
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68
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SECTION 1205.
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Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
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70
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SECTION 1206.
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Reinstatement
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71
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SECTION 1207.
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Qualifying Trustee
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71
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ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES
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71
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SECTION 1301.
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Purposes for Which Meetings May Be Called
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71
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SECTION 1302.
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Call, Notice and Place of Meetings
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71
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SECTION 1303.
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Persons Entitled to Vote at Meetings
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72
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SECTION 1304.
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Quorum; Action
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72
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v
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Page
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SECTION 1305.
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Determination of Voting Rights; Conduct and Adjournment of
Meetings
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74
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SECTION 1306.
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Counting Votes and Recording Action of Meetings
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75
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vi
CERTAIN SECTIONS OF THIS INDENTURE RELATING
TO SECTIONS 310 THROUGH 318,
INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
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TRUST INDENTURE ACT SECTION
|
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INDENTURE SECTION
|
SECTION 310(a)(1)
(a)(2)
(a)(3)
(a)(4)
(a)(5)
(b)
SECTION 311(a)
(b)
SECTION 312(a)
(b)
(c)
SECTION 313(a)
(b)
(c)
(d)
SECTION 314(a)
(a)(4)
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609,610
609
NOT APPLICABLE
NOT APPLICABLE
609
608, 610
613
613
701, 702
702
702
703
703
703
703
704
101, 1004
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(b)
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NOT APPLICABLE
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(c)(1)
(c)(2)
(c)(3)
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102
102
NOT APPLICABLE
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(d)
(e)
SECTION 315(a)
(b)
(c)
(d)
(e)
SECTION 316(a)
(a)(1)(a)
(a)(1)(b)
(a)(2)
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NOT APPLICABLE
102
601
602
601
601
514
101
502, 512
513
NOT APPLICABLE
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(b)
(c)
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508
104
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SECTION 317(a)(1)
(a)(2)
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503
504
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(b)
SECTION 318(a)
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1003
107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
vii
SENIOR
INDENTURE, dated as of September 17, 2010, between Manulife Financial Corporation, a
corporation duly organized and existing under the
Insurance Companies Act
(Canada) (herein called
the Company), having its principal office at 200 Bloor Street East, Toronto, Ontario M4W 1E5, and
The Bank of New York Mellon, a New York banking corporation, as Trustee (herein called the
Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured senior debt securities in one or more series (the
Securities) of substantially the tenor hereinafter provided, and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and delivered; and
all things necessary 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, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101.
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted at
the time of such computation;
provided
, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an Article or a Section
refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words herein, hereinafter, 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.
Act when used with respect to any Holder, has the meaning specified in Section 104.
Additional
Amounts has the meaning specified in Section 1010.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities.
Base Currency has the meaning specified in Section 115.
Board of Directors means the board of directors of the Company, any duly authorized
committee of that board or any officer of the Company delegated the power of either the board of
directors of the Company or any duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
branch register has the meaning specified in Section 305.
Branch Security Registrar has the meaning specified in Section 305.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in New York, New York, Toronto, Ontario, the Corporate Trust Office or any Place of
Payment are authorized or obligated by law or executive order to close.
Canadian GAAP means, at any particular time, accounting principles generally accepted in
Canada or, at the election of the Company, International Financial Reporting Standards as issued by
the International Accounting Standards Board and adopted in Canada, provided that the Company is
permitted to file its audited annual financial
2
statements with the Ontario Securities Commission
prepared in accordance with such reporting standards (and include the accounting requirements of
the Superintendent).
Central Register has the meaning specified in Section 305.
Central Security Registrar has the meaning specified in Section 305.
Commission means the United States 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
instrument 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.
Company means the Person named as the Company in the first paragraph of this instrument
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 and Company Order mean, respectively, a written request or order signed in
the name of the Company by any two of the President and a Senior Executive Vice President or one of
them together with the Secretary, the Treasurer, the Controller, an Assistant Secretary or an
Assistant Treasurer, of the Company, and delivered to the Trustee or, with respect to Sections 303,
304, 305 and 603, any other employee of the Company named in an Officers Certificate delivered to
the Trustee.
Corporate Trust Office means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 101 Barclay Street, Floor 4E, New York, New York 10286, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee.
corporation means a corporation, association, company, joint-stock company or business
trust.
Covenant Defeasance has the meaning specified in Section 1203.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1202.
Depositary means the clearing agency registered under the Exchange Act that is designated by
the Company in Section 301 to act as depositary for any series of Securities with respect to such
series (or any successor to such clearing agency).
Dollars and $ means the currency of Canada and U.S. Dollars and U.S.$ means the
currency of the United States of America, in each case as at the time of payment is legal tender
for the payment of public and private debts.
3
Event of Default, unless otherwise specified with respect to Securities of a series pursuant
to Section 301, has the meaning specified in Section 501.
Exchange Act means the United States Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Global Security means a Security that evidences all or part of a series of Securities issued
to the Depositary or its nominee for such series, and registered in the name of such Depositary or
its nominee and bearing the legend set forth in Section 202.
Holder means a Person in whose name a Security is registered in the Security Register.
Indebtedness of any person means the principal of and premium, if any, and interest due on
indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, which is (a) indebtedness for money borrowed, and (b) any amendments,
renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of
this definition, indebtedness for money borrowed means (i) any obligation of, or any obligation
guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) any obligation of, or any such obligation
guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments,
including obligations assumed or incurred in connection with the acquisition of property, assets or
businesses (provided, however, that the deferred purchase price of any property, assets or business
shall not be considered Indebtedness if the purchase price thereof is payable in full within 90
days from the date on which such indebtedness was created), and (iii) any obligations of such
Person as lessee under leases required to be capitalized on the balance sheet of the lessee
under generally accepted accounting principles and leases of property or assets made as part of any
sale and lease-back transaction to which such Person is a party. Indebtedness does not include
trade accounts payable or accrued liability arising in the ordinary course of business.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of each particular series of Securities
established as contemplated by Section 301, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part
of and govern this instrument and any such supplemental indenture, respectively.
Insurance Companies Act or ICA means the
Insurance Companies Act
(Canada).
Interest Payment Date means as to each series of Securities the Stated Maturity of an
installment of interest on such Securities.
4
Interest Rate means the rate of interest specified or determined as specified in each
Security as being the rate of interest payable on such Security.
Investment Company Act means the United States Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
John Hancock USA means John Hancock Life Insurance Company (U.S.A.), a stock life insurance
company organized under the laws of the State of Michigan.
Judgment Currency has the meaning specified in Section 115.
Maturing Security has the meaning specified in Section 403.
Maturity when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as provided in the Securities
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
MLI means The Manufacturers Life Insurance Company, a corporation existing under the
Insurance Companies Act.
Notice of Default means a written notice of the kind specified in Section 501(3).
Officers Certificate means a certificate signed by any two of the President and a Senior
Executive Vice President or one of them together with the Secretary, the Treasurer, the Controller,
an Assistant Secretary or an Assistant Treasurer, of the Company, and delivered to the Trustee.
One of the officers signing an Officers Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
Opinion of Counsel means a written opinion of counsel, reasonably acceptable to the Trustee,
who may be counsel for (and an employee of) the Company.
Original Issue Date means the date of issuance specified as such in each Security.
Original Issue Discount Security means any security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
5
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities, or portions thereof, for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided that
, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities, except to the extent provided in Sections 1202 and 1203, with respect to
which the Company has effected defeasance and/or covenant defeasance as provided in Article Twelve;
and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by Holders in
whose hands such Securities are valid, binding and legal obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, and (C) Securities beneficially owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of
the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgees 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 of
such other obligor.
Paying Agent means the Trustee or any other Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
6
Person means any individual, corporation, partnership, joint venture, association, limited
liability or joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment means, with respect to the Securities of any series, the place or places
where the principal of and any premium and interest on the Securities of such series are payable as
specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Purchasing Subsidiary has the meaning specified in Section 403.
rate(s) of exchange has the meaning specified in Section 115.
Redemption Date when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of a series means, unless otherwise provided pursuant to Section 301 with respect to Securities of
a series, the date which is fifteen days next preceding such Interest Payment Date (whether or not
a Business Day).
Relevant
Taxes has the meaning specified in Section 1010.
Responsible Officer, when used with respect to the Trustee, means any officer of the Trustee
located within the Corporate Trust Office of the Trustee, including any vice president, assistant
vice president, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
Persons knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
Restricted
Subsidiary means each of John Hancock USA and MLI.
Securities or Security means any debt securities or debt security, as the case may be,
authenticated and delivered under this Indenture.
Securities Act means the United States Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
7
Security Register and Security Registrar have the respective meanings specified in Section
305.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable, in
the case of such principal or installment of principal, as such date may be extended or shortened
as provided pursuant to the terms of such Security.
Subsidiary means a corporation, partnership or other entity of which, at the time of
determination, more than 50% of the outstanding voting stock or equivalent interest is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries. For the purposes of this definition, voting stock means stock
which ordinarily has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any contingency.
Subsidiary Transfer has the meaning specified in Section 403.
Superintendent means the Superintendent of Financial Institutions (Canada).
Tax Act means the Income Tax Act (Canada).
Trust Indenture Act or TIA means the United States Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed;
provided
,
however
, that in
the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and, if at any time there is more than one such Person, Trustee as used with respect
to the Securities of any series shall mean the Trustee with respect to the Securities of that
series.
U.S. Government Obligations means, with respect to the Securities of any series, securities
which are (i) direct obligations of the United States of America or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed by the United States of America and
which, in either case, are full faith and credit obligations of the United States of America and
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
8
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 interest on or
principal of the U.S. Government Obligation evidenced by such depository receipt.
Vice President when used with respect to the Company or the Trustee, means any officer with
a title of Vice President, Senior Vice President, Executive Vice President or Senior
Executive Vice President.
SECTION 102.
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act or that the Trustee reasonably requests.
Each such certificate or opinion shall be given in the form of an Officers Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture. In the case of an application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the certificates provided pursuant to Section 1004) shall
include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103.
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to
9
some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his 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,
or other management employee of the Company or any Subsidiary stating that the information with
respect to such factual matters is in the possession of the Company or such Subsidiary, unless such
counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters upon which such certificate or
opinion may be based are erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104.
Acts of Holders; Record Dates
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made 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 an 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 Trustee 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 601) conclusive and may be relied upon by the Trustee, the
Company, and any agent of the Trustee or 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 by the affidavit of a witness of such execution or by a certificate of any notary public or
other officer authorized by law to take acknowledgments of
10
deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a Person acting in a capacity
other than his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities,
provided
that the Company may not set a record date for, and the provisions of this paragraph shall not
apply with respect to, the giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration, or any recission or annulment of any such declaration, referred to
in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv)
any direction referred to in Section 512. If any
11
record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled
to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders after such
record date;
provided
that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Companys expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record date may designate any day as the Expiration Date and from time to time may change the
Expiration Date to any earlier or later day;
provided
that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section 106, on or prior to
the existing Expiration Date. If an Expiration Date is not designated with respect to any record
date set pursuant to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105.
Notices, Etc., to Trustee and Company
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed to or with the Trustee in writing at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
12
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class,
postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Treasurer.
Neither the Company nor the Trustee shall be deemed to have received any such request, demand,
authorization, direction, notice, consent, waiver or Act of Holders unless given, furnished or
filed as provided in this Section 105.
SECTION 106.
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,
first-class postage prepaid, to each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), 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 manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the written approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or excluded, as the case may be.
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.
13
SECTION 109.
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110.
Separability 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, any Paying Agent, any Security Registrar and their successors and
assigns, 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. This Indenture is 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, Maturity or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) 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 or Redemption Date, or at
the Maturity or Stated Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Maturity or Stated Maturity, as the case may be, if such
payment is made or duly provided for on the next succeeding Business Day, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day.
SECTION 114.
Computations
.
Unless otherwise specifically provided, the certificate or opinion of any independent firm of
public accountants of recognized standing selected by the Board of Directors shall be conclusive
evidence of the correctness of any computation made under the provisions of this Indenture. The
Company shall furnish to the Trustee upon its request a copy of any such certificate or opinion.
14
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 any other currency (the Base Currency), then the conversion shall be made by the Company
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 (or, as the case may be, such lesser)
amount, if any, as may be necessary so that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of receipt will produce the amount
in Base Currency originally due.
(b) In the event of the winding-up of the Company at any time while any amount or damages
owing under the Securities and this Indenture, or any judgment or order rendered in respect
thereof, shall remain outstanding, the Company shall indemnify and hold the Holders and the Trustee
harmless against any deficiency arising or resulting from any variation in rates of exchange
between (i) the date as of which the equivalent of the amount in Base Currency due or contingently
due under the Securities and this Indenture (other than under this paragraph (b)) is calculated for
the purposes of such winding-up and (ii) the final date for the filing of proofs of claim in such
winding-up. For the purpose of this paragraph (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 paragraphs (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
Trustee or either of them from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the
Company for a liquidated sum in respect of amounts due hereunder (other than under paragraph (b)
above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or its liquidator. In the case of
paragraph (b) above, the amount of such deficiency shall not be deemed to be increased
15
or reduced
by any variation in rates of exchange occurring between the said final date and the date of any
liquidation distribution.
(d) The term rate(s) of exchange shall mean the Bank of Canada noon rate for purchase of
Base Currency with the Judgment Currency as reported by REUTERS on screens BOFC and BOFD.
(e) The Trustee shall have no duty or liability with respect to monitoring or enforcing this
Section 115.
SECTION 116.
Agency for Service; Submission to Jurisdiction; Waiver of Immunities
.
(a) By the execution and delivery of this Indenture, the Company (i) acknowledges that it has,
by separate written instrument, irrevocably designated and appointed John Hancock (USA), 601
Congress Street, Boston, Massachusetts 02210, as its authorized agent for service of process in any
suit, action or proceeding arising out of or based upon the Securities of any series or this
Indenture that may be instituted in any federal or state court located in the Borough of Manhattan
in The City of New York, or brought under United States federal or state securities laws or brought
by the Trustee, and acknowledges that John Hancock (USA) has accepted such designation, (ii)
irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iii) agrees that service of process upon John Hancock (USA) and written notice of
said service to it (mailed or delivered to the Companys Treasurer at its principal office in
Toronto, Canada as specified in Section 105(2) in this Indenture) shall be deemed in every respect
effective service of process upon it in any such suit, action 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 John
Hancock (USA) in full force and effect so long as this Indenture shall be in full force and effect.
(b) 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, the
Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture
and the Securities, to the extent permitted by law.
SECTION 117.
Incorporators, Shareholders, Officers and Directors of the Company Exempt from
Individual Liability
.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security of any series, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future shareholder, officer or
director, as such, of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or
16
equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
SECTION 118.
References to Statutes
.
Any reference in this Indenture to a statute or regulation shall be deemed to be a reference
to such statute or regulation as amended, re-enacted, or replaced from time to time.
SECTION 119.
Waiver of Jury Trial
.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 120.
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE TWO
SECURITY FORMS
SECTION 201.
Forms Generally
.
The Securities of each series shall be substantially in the form attached as Exhibit A, or in
such other form or forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate provisions 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 applicable tax
laws or the rules of any securities exchange or Depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
17
prior to the
delivery of the Company Order contemplated by Section 303 with respect to the authentication and
delivery of such Securities.
The Trustees certificate of authentication shall be substantially in the form set forth in
this Article.
The definitive Securities shall be printed, lithographed or engraved on a steel engraved
border or on steel engraved borders or produced by any combination of these methods, if required by
any securities exchange on which the Securities may be listed, 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.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, the
Securities of each series will initially be issued in the form of one or more Global Securities.
Each such Global Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and each shall provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and that the aggregate
amounts of Outstanding Securities of such series represented thereby may from time to time be
reduced or increased, as appropriate. The Global Security or Securities evidencing the Securities
of a series (and all Securities issued in exchange therefore) shall bear the legend indicated in
Section 202.
SECTION 202.
Form of Legend for Global Securities
.
Every Global Security authenticated and delivered hereunder shall, in addition to the
provisions contained in Exhibit A, bear a legend in substantially the following form:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS 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 THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH
18
NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 203.
Form of Trustees Certificate of Authentication
.
The Trustees certificates of authentication shall be in substantially the following form:
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
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The Bank of New York Mellon,
as Trustee
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By:
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Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301.
Title; Terms
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall distinguish the Securities of the
series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the same series pursuant to Section 304, 305, 306, 906 or 1108 and except for any Securities
which, pursuant to Section 303, are deemed never to have been authenticated and delivered
hereunder);
provided
,
however
, that the authorized aggregate principal amount of
such series may be increased above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the Securities of such series
is payable or the method of determination thereof;
19
(d) the rate or rates, if any, at which the Securities of such series shall bear interest or
the method of determining such rate or rates, the Interest Payment Dates on which such interest
shall be payable, the right, if any, of the Company to defer or extend an Interest Payment Date,
the Regular Record Date (if other than as defined in this Indenture) for the interest payable on
any Interest Payment Date and the dates from which interest shall accrue and the method of
determining these dates;
(e) the place or places where the principal of (and premium, if any) and interest on the
Securities of such series shall be payable, the place or places where the Securities of such series
may be presented for registration of transfer or exchange, and the place or places where notices
and demands to or upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if any, the price or prices at
which and the terms and conditions upon which the Securities of such series may be redeemed or
prepaid, in whole or in part, at the option of the Company;
(g) the obligation or the right, if any, of the Company to redeem, repay or purchase the
Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be issuable, if other than
denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in excess thereof;
(i) if other than U.S. Dollars, the currency or currencies (including currency unit or units)
in which the principal of (and premium, if any) and interest, if any, on the Securities of the
series shall be payable, or in which the Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of Default or covenants
of the Company set forth herein with respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series that shall be payable upon declaration of acceleration of the Maturity
thereof;
(l) the additions or changes, if any, to this Indenture with respect to the Securities of such
series as shall be necessary to permit or facilitate the issuance of the Securities of such series
in bearer form, registrable or not registrable as to principal, and with or without interest
coupons;
(m) any index or indices used to determine the amount of payments of principal of and premium,
if any, on the Securities of such series or the manner in which such amounts will be determined;
20
(n) the issuance of a temporary Global Security representing all of the Securities of such
series and the terms upon which such temporary Global Security may be exchanged for definitive
Securities of such series;
(o) whether the Securities of the series shall be issued in whole or in part in the form of
one or more Global Securities and, in such case, the identity of the Depositary for such Global
Securities;
(p) the appointment of any Paying Agent or Agents for the Securities of such series;
(q) the terms and conditions of any right or obligation on the part of the Company, or any
option on the part of the Holders, to convert or exchange Securities of such series into cash or
any other securities or property of the Company or any other Person, and the additions or changes,
if any, to this Indenture with respect to the Securities of such series to permit or facilitate
such conversion or exchange; and
(r) any other terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture), but which may modify or delete any provision of this
Indenture with respect to such series, provided that no such term may modify or delete any
provision hereof if imposed by the Trust Indenture Act, and provided, further that any modification
or deletion of the rights, duties or immunities of the Trustee hereunder shall have been consented
to in writing by the Trustee).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set
forth in such Officers Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
SECTION 302.
Denominations
.
The Securities of each series shall be in registered form without coupons and shall be
issuable in denominations of U.S.$1,000 and any integral multiples of U.S.$1,000 in excess thereof,
unless otherwise specified as contemplated by Section 301.
SECTION 303.
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by the President and a Senior
Executive Vice President or one of them and the Secretary, the Treasurer, the Controller, an
Assistant Secretary or an Assistant Treasurer. The signature of any of these officers on the
Securities may be manual or facsimile.
21
Securities bearing the manual or facsimile signature of an individual who was at any time a
proper officer of the Company shall bind the Company, notwithstanding that such individual has
ceased to hold such office prior to the authentication and delivery of such Securities or did not
hold such office at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such Securities.
If the form or forms or terms of the Securities of a series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be given upon its request, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) that such form or forms have been established in conformity with the provisions of this
Indenture;
(2) that such terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities have been duly executed and, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors rights and to general equity principles.
If such form or forms or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
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 executed by the Trustee by the manual signature of
one of its authorized signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for
22
cancellation as provided in Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Minor typographical and other minor errors in the text of any Security shall not affect the
validity and enforceability of such Security if it has been duly authenticated and delivered by the
Trustee.
Except in the case of Securities of any series as to which it is specified, as contemplated by
Section 301, that such securities shall be issued initially in individual certificated form, the
Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities
with respect to each series of Securities that (i) shall represent an aggregate amount equal to the
aggregate principal amount of the initially issued Securities of such series, (ii) shall be
registered in the name of the Depositary or the nominee of the Depositary, (iii) shall be delivered
by the Trustee to the Depositary or pursuant to the Depositarys instruction and (iv) shall bear a
legend substantially in the form required in Section 202.
The Depositary must, at all times while it serves as such Depositary, be a clearing agency
registered under the Exchange Act, and any other applicable statute or regulation.
SECTION 304.
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee 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 of any series 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 evidenced by their execution
of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of such series 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 in a Place of Payment without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized denominations and having
the same Original Issue Date and Stated Maturity and having the same terms as such temporary
Securities. 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
.
So long as required by the Insurance Companies Act, the Company shall maintain or shall cause
to be kept, at the head office of the Company or at any other place in Canada designated by the
Board of Directors, a securities register (the Central
23
Register) of Holders of each series of Securities maintained in compliance with the Insurance
Companies Act. The Company will cause the particulars of each issue, exchange or transfer of
Securities to be recorded in the Central Register. The Company shall initially be the central
security registrar (the Central Security Registrar) for the purpose of registering Securities and
transfers and exchanges of Securities in the Central Register as provided herein;
provided
,
however
, the Company may appoint from time to time one or more successor Central Security
Registrars and may from time to time rescind any such appointment.
The Company shall also cause to be maintained a branch register (a branch register) or
branch registers of Holders of Securities in accordance with Section 1002 in the same manner and
containing the same information with respect to each entry contained therein as contained in the
Central Register. A copy of every entry in a branch register shall, promptly after the entry is
made, be transmitted to the Central Security Registrar. If there is a conflict between the
information contained in the Central Register and the information contained in the branch register,
the information contained in the Central Register shall prevail. The Central Register together
with each branch register are collectively referred to herein as the Security Register. At all
reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as branch security registrar (the Branch Security Registrar) for the
purpose of maintaining a branch register at its Corporate Trust Office;
provided
,
however
, the Company may appoint from time to time one or more successor or additional
Branch Security Registrars and may from time to time rescind any such appointment. The Central
Security Registrar together with each Branch Security Registrar are collectively referred to herein
as the Security Registrar.
Upon surrender for registration of transfer of any Security at the office or agency of the
Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations and of a like tenor and aggregate principal amount, of
the same Original Issue Date and Stated Maturity and having the same terms.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a Global Security representing all or
a portion of the Securities may not be transferred except as a whole by the Depositary to a nominee
of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary, or by such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary.
At the option of the Holder, Securities may be exchanged for other Securities, of the same
series of any authorized denominations, of like tenor and aggregate principal amount, of the same
Original Issue Date and Stated Maturity and having the same terms, 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 Trustee
24
shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary or if at any time the Depositary shall cease to be a clearing agency registered under
the Exchange Act as provided in Section 303, the Company shall appoint a successor Depositary. If
a successor Depositary is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual Securities, will
authenticate and make available for delivery, individual Securities in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing the
Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion (subject to the procedures of the
Depositary) determine that individual Securities issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities, will authenticate and make available for delivery, individual
Securities in an aggregate principal amount equal to the principal amount of the Global Security or
Securities representing the Securities in exchange for such Global Security or Securities.
The Depositary may surrender a Global Security in exchange in whole or in part for individual
Securities on such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for
delivery, without service charge:
(1) to each Person specified by such Depositary a new individual Security or Securities of
any authorized denomination as requested by such Person in aggregate principal amount equal to and
in exchange for such Persons beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the aggregate principal
amount of individual Securities delivered to Holders thereof.
Upon the exchange of a Global Security for individual Securities in an aggregate principal
amount equal to the principal amount of such Global Security, such Global Security shall be
canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant
to this Section shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall make available for
delivery such individual Securities to the Persons in whose names such Securities are so
registered.
25
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 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 to a Holder or the Trustee for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1108 not
involving any transfer.
Neither the Company nor the Trustee shall be required, pursuant to the provisions of this
Section: (i) to issue, register the transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 Business Days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption of Securities pursuant to
Article Eleven and ending at the close of business on the day of such mailing of notice of
redemption; or (ii) to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except, in the case of any Security to be redeemed in part, any portion
thereof that is not redeemed.
SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same issue and series, of like tenor and principal amount, having the same Original
Issue Date and Stated Maturity and bearing the same Interest Rate as such mutilated Security, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
issue and series, of like tenor and principal amount, having the same Original Issue Date and
Stated Maturity and bearing the same Interest Rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
26
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 new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company or the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional 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 the 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 307.
Payment of Interest; Interest Rights Preserved
.
Interest on any Security of any series 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 in respect of Securities of such series. The initial payment of
interest on any Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or in the Board
Resolution pursuant to Section 301 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or duly provided for, on
any Interest Payment Date for Securities of such series (herein called Defaulted Interest), shall
forthwith cease to be payable to the registered Holder on the relevant 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 Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series in respect of which interest is in default (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company shall deposit with
the 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 Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
27
benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid,
to each Holder of a Security of such series at the address of such Holder 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 of such series (or
their respective Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Securities of the series in respect of which interest is in default may be listed, and upon
such notice as may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
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 308.
Persons Deemed Owners
.
The Company, the Trustee and any agent of the Company or the Trustee 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 any premium and (subject to Section 307) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
28
SECTION 309.
Cancellation
.
All Securities surrendered for payment, redemption or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any
such Securities and Securities surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed by it in its customary manner or as directed by a
Company Order received five days prior to such cancellation, and the Trustee shall deliver to the
Company upon its request therefor a certificate evidencing the disposition of the cancelled
Securities. Acquisition by the Company of any Security shall not operate as a redemption or
satisfaction of the indebtedness represented by such Security unless and until the same is
delivered to the Trustee for cancellation.
SECTION 310.
Computation of Interest
.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
For the purposes of disclosure under the
Interest Act
(Canada), the yearly rate of interest to
which any rate of interest payable under a Security, which is to be calculated on any basis other
than a full calendar year, is equivalent may be determined by multiplying the rate by a fraction,
the numerator of which is the number of days in the calendar year in which the period for which
interest at such rate is payable and the denominator of which is the number of days comprising such
other basis.
SECTION 311.
CUSIP Numbers
.
The Company in issuing Securities may use CUSIP numbers (if then generally in use), and, if
so, the Trustee shall use for the Securities CUSIP numbers in notices to the Holders as a
convenience to such Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any
notice and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such notice shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any changes in the CUSIP numbers.
29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401.
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of a series (except as to any surviving rights of registration of transfer or exchange
of Securities herein expressly provided for) and the Trustee at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect
to such Securities, when:
(1) either
(A) all such Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year of
the date of deposit, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds: (A) money in an amount; (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, money in an amount;
or (C) a combination thereof, in each case sufficient to pay and discharge, and which shall be
applied by the Trustee, to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
provided
, that the
Trustee shall have the right (but not the obligation) to require the Company to deliver to the
Trustee an opinion of a nationally recognized firm of independent public accountants expressed in a
30
written certification, or other evidence satisfactory to the Trustee, as to the sufficiency of
deposits made by the Company pursuant to this Section;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to such Securities; and
(3) the Company has delivered to the Trustee 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 with respect to such Securities have been complied
with.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to this Section 401 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 Outstanding Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607 and the preceding paragraph, the obligations of the
Company to any Authenticating Agent under Section 614 and, if money and/or U.S. Government
Obligations shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive such satisfaction and discharge.
SECTION 402.
Application of Trust Money
.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 401 and all proceeds of such U.S.
Government Obligations and the interest thereon, shall be held in trust and applied by it, in
accordance with the provisions of the Securities of the applicable series and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money and U.S. Government Obligations have been
deposited with the Trustee.
SECTION 403.
Purchase of Maturing Securities
.
Notwithstanding any provision of this Indenture to the contrary, the Company may, at its
option, elect, by giving written notice of such election to the Trustee at least three Business
Days prior to the date of Maturity of any series of Securities (each such series of Securities, the
Maturing Securities), to have a Subsidiary of the Company (the Purchasing Subsidiary) purchase,
on the date of Maturity of the Maturing Securities, all, but not less than all, of the Outstanding
Securities of such Maturing Securities upon the tendering by the Holders of such Maturing
Securities for payment on the date of Maturity, subject to the satisfaction of the conditions
precedent set forth below. If the
31
Company shall have timely made such an election and, at or prior to 10:00 a.m. (New York City
time) on the date of Maturity all of the following conditions precedent shall have been satisfied:
(a) the Company shall have deposited or caused to be deposited with the Trustee, for
disbursement by the Trustee to the Holders of the Maturing Securities, money in an amount
sufficient to pay all accrued and unpaid interest on the Maturing Securities to the date of
Maturity;
(b) the Purchasing Subsidiary shall have deposited or caused to be deposited with the Trustee,
for disbursement by the Trustee to the Holders of the Maturing Securities, money in an amount
sufficient to pay the principal and premium, if any, of the Maturing Securities, which amount shall
be deemed to be the purchase price for the Maturing Securities; and
(c) the Company shall have deposited or caused to be deposited with the Trustee, for
disbursement by the Trustee to the Holders of the Maturing Securities, money in an amount
sufficient to pay all other sums payable hereunder by the Company with respect to the Maturing
Securities,
the Maturing Securities shall, as of the date of Maturity, upon disbursement to the Holders of the
Maturing Securities of the principal of and premium, if any, and interest payable on the Maturing
Securities and all other sums payable hereunder by the Company with respect to the Maturing
Securities, be deemed to be transferred by each Holder thereof to the Purchasing Subsidiary (the
Subsidiary Transfer), without any further action by any such Holder, and the Trustee shall issue
and authenticate to the Purchasing Subsidiary a definitive Security in the name of the Purchasing
Subsidiary in the amount of the Maturing Securities. Upon surrender of the Maturing Securities to
the Trustee for payment, the Trustee shall cancel the Maturing Securities in accordance with
Section 309 hereof.
Upon a Subsidiary Transfer the Maturing Securities shall not be discharged, shall continue to
be outstanding and shall be reregistered in the name of the Purchasing Subsidiary as provided above
and the debt evidenced by the Maturing Securities shall not have been settled, discharged or
novated, and from and after the date of such Subsidiary Transfer, the Purchasing Subsidiary shall
be a Holder of the Maturing Securities for all purposes under the Indenture and (except as set
forth below), shall have all of the rights granted to a Holder of the Maturing Securities
hereunder, including the right to receive future payments of principal and interest, and premium,
if any, on the Maturing Securities in the manner provided for in this Indenture and in the Maturing
Securities on and as of the dates specified in this Indenture and in the Maturing Securities.
Notwithstanding the above paragraph, in any matter requiring the consent, waiver or other vote
of Holders of Securities, the Maturing Securities held by the Purchasing Subsidiary shall be
disregarded, except with respect to such matters affecting only the Maturing Securities.
32
Nothing in this Section 403 shall release the Company from its obligations to the Holders of
the Maturing Securities hereunder and under the Maturing Securities to pay the principal of,
premium, if any, and interest on the Maturing Securities and all other sums payable hereunder by
the Company with respect to the Maturing Securities in the event that all such obligations are not
discharged in full pursuant to this Section 403.
The Company covenants and agrees that no series of Maturing Securities shall be further
transferred by the Purchasing Subsidiary to any Person that is not an Affiliate of the Company.
ARTICLE FIVE
REMEDIES
SECTION 501.
Events of Default
.
Event of Default, wherever used herein with respect to the Securities of any series, means
any one of the following events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and such default continues for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on any Security of that
series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in the performance of which or the breach of
which is specifically dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a Notice of
Default hereunder; or
(4) an order is made or an effective resolution is passed for the winding-up or liquidation
of the Company or in the event of any other dissolution of the Company by operation of law, except
in the course of carrying out or pursuant to a transaction in respect of which the conditions of
Article Eight are duly observed and performed; or
(5) the Company makes a general assignment for the benefit of its creditors, or otherwise
acknowledges its insolvency, becomes insolvent or is declared bankrupt or consents to the
institution of bankruptcy or insolvency proceedings against it under any bankruptcy, insolvency or
analogous laws or if a custodian, sequestrator, liquidator, receiver, receiver and manager or any
other officer with similar powers is appointed of
33
the Company or of the property of the Company or any part thereof which is, in the opinion of
the Trustee, a substantial part thereof; or
(6) any other Event of Default specified with respect to Securities of that series as
contemplated in Section 301.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default (other than an Event of Default specified in Section 501(4) or 501(5))
with respect to Securities of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount (or, if the Securities
of that series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(4) or 501(5) with
respect to Securities of a series at the time Outstanding occurs, the principal amount of all the
Securities of such series (or specified amount) shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and premium, if any, on, any Securities of that series which
have become due otherwise than by such declaration of acceleration and any interest thereon
at the rate or rates borne by such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates borne by or prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal (or a specified portion of the principal) of and interest on
34
Securities of that series which has 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 Trustee
.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal or premium, if any, on any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal, including any
sinking fund payment or analogous obligations (and premium, if any) and interest, including, to the
extent that payment of such interest shall be legally enforceable, interest on any overdue
principal or premium, if any, and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, 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, 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 with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504.
Trustee May File Proofs of Claim
.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors:
35
(a) the Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding, and
(ii) in particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute the same in
accordance with Section 506; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee for distribution in accordance with Section 506, and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
SECTION 505.
Trustee 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 Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the 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 or property collected or to be applied by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money or property 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:
36
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon such series of 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 series of Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507.
Limitation on Suits
.
No Holder of any Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60 day period by the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders of such series of Securities, or to obtain or to seek
to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
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, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security
37
on the respective Stated Maturities 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 the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510.
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee 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.
SECTION 511.
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512.
Control by Holders
.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such series,
provided
that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
involve the Trustee in personal liability or be unduly prejudicial to the Holders of the Securities
not joining in the action; and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 513.
Waiver of Past Defaults
.
Subject to Section 502 hereof, the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of the Holders of all of the
Securities of such series, waive any past default hereunder with respect to such series and its
consequences, except a default:
(1) in the payment of the principal of, or premium, if any, or interest on, any Security of
such series; or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, 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 the Trustee for any
action taken, suffered or omitted by it as Trustee, any party litigant in such suit to file an
undertaking to pay the costs of such suit, and that court may in its discretion assess reasonable
costs, including reasonable attorneys fees and expenses, against any such party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses made by such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided,
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted by the Company or
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series, or 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 the Redemption Date).
SECTION 515.
Waiver of Usury, Stay or Extension Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
39
ARTICLE SIX
THE TRUSTEE
SECTION 601.
Certain Duties and Responsibilities
.
The duties, responsibilities, protections, privileges, and immunities of the Trustee shall be
as provided by the Trust Indenture Act, particularly Sections 315 and 316 thereof, unless expressly
excluded as provided in this Article Six.
(a) Except during the continuance of an Event of Default,
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(1)
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the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
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(2)
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in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).
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(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
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(1)
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this Subsection shall not be construed to limit the effect of Subsection (a)
of this Section;
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(2)
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the Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
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(3)
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the Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any series, relating to
the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred
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upon the Trustee, under this Indenture with respect to the Securities of such series;
and
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(4)
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Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602.
Notice of Defaults
.
If a default occurs hereunder with respect to the Securities of a series, the Trustee within
90 days of such default shall give the Holders of such Securities notice of such default as and to
the extent provided by the Trust Indenture Act;
provided
,
however
, that in the case
of any default of the character specified in Section 501(3) with respect to such Securities, no
such notice to Holders shall be given until at least 30 days after the occurrence thereof; and
provided
,
further
, that the Trustee may withhold notice to the Holders, of any
default with respect to Securities of a series (except any default of the character specified in
Section 501(1) and (2)), if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good faith determine that
the withholding of the notice is in the interest of the Holders of such Securities. For the
purpose of this Section, the term default means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to the Securities of a series.
SECTION 603.
Certain Rights of Trustee
.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate and may at
41
its discretion secure such further evidence deemed necessary or advisable, but shall in no
case be bound to secure the same;
(4) the Trustee may consult with counsel of its selection 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 it hereunder in good faith and in reliance thereon;
(5) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, at the expense of the Company and shall incur no liability of
any kind by reason of such inquiry or investigation;
(6) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder and shall have no obligation to monitor or supervise any such agent so appointed;
(7) the Trustees immunities and protections from liability and its rights to compensation
and indemnification in connection with the performance of its duties under this Indenture shall
extend to the Trustees officers, directors, agents and employees and its services as Paying Agent,
Security Registrar or any other role assumed by the Trustee hereunder or to which it has been
appointed with respect to the Securities issued hereunder. Such immunities and protections and
right to indemnification, together with the Trustees right to compensation, shall survive the
Trustees resignation or removal and final payment of the Securities;
(8) the Trustee is not required to give any bond or surety with respect to the performance of
its duties or the exercise of its powers under this Indenture;
(9) the Trustee shall not be deemed to have knowledge of any default or Event of Default
hereunder except (i) during any period it is serving as Paying Agent for the Securities of a
series, any Event of Default pursuant to Section 501(1) or (2), or (ii) any default or Event of
Default of which a Responsible Officer shall have received written notification at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this Indenture, from the
Company or the Holders of at least 25% in aggregate principal amount of the Securities of the
series with respect to which such default or Event of Default has occurred and is continuing or
obtained actual knowledge. The term actual knowledge as used herein shall mean the actual fact
or statement of knowing by a Responsible Officer without independent investigation with respect
thereto. The term default as used in this Section 603 shall mean any event
42
which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of a series;
(10) the Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture (other than the payment of debt service on the Securities from moneys
furnished to it pursuant hereto), whether at the request or direction of the Holders or any other
Person, pursuant to this Indenture or otherwise, unless it shall have been offered indemnity or
security reasonably satisfactory to it against the fees, advances, costs, expenses and liabilities
which might be incurred by it in connection with the exercise of any such rights or powers;
(11) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(12) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(13) the Trustee may request that the Company deliver a certificate setting forth the names
of individuals and/or titles of officers authorized at such time to take specified actions pursuant
to this Indenture.
SECTION 604.
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 606.
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as agreed with the Company herein or otherwise.
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SECTION 607.
Compensation and Reimbursement
.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents or attorneys), except any such expense,
disbursement or advance that shall be determined to have been caused by the negligence, willful
misconduct or bad faith of it or of its agents or attorneys;
(3) to indemnify, defend and to hold the Trustee harmless against, any loss, liability,
claim, damage or expense (including the reasonable compensation and the reasonable expenses and
disbursements of its agents or attorneys) incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the reasonable costs and expenses of defending itself against
any claim or liability in connection therewith or with the exercise or performance of any of its
powers or duties hereunder;
(4) that the Trustee shall have a lien prior to the Securities upon all property and funds
held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section
607, except with respect to funds held in trust for the benefit of the Holders of particular
Securities; and
(5) without limiting any rights available to the Trustee under applicable law, that when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section 607 shall survive the termination of this Indenture and
resignation and removal of the Trustee.
SECTION 608.
Disqualification; Conflicting Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a Trustee under this Indenture with respect to Securities
of more than one series.
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SECTION 609.
Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee hereunder which shall (i) be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, (ii) be authorized under such laws to exercise corporate trust powers, (iii) have a
combined capital and surplus of at least U.S.$50,000,000, and (iv) be subject to supervision or
examination by Federal or State authority. If such corporation files reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so filed. If at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article Six. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve as Trustee for the
Securities of any series issued hereunder.
SECTION 610.
Resignation and Removal; Appointment of Successor
.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign as Trustee at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
The Trustee may be removed as Trustee hereunder at any time with respect to the Securities of
any series by Act of the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with 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) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public
45
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B)
subject to Section 514, any Holder 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 the Trustee and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series and shall comply with the applicable requirements
of Section 611. If, within 90 days after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide Holder of a Security for at
least six months or the retiring Trustee may, subject to Section 514, on behalf of himself and all
others similarly situated, petition at the expenses of the Company any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611.
Acceptance of Appointment by Successor
.
(a) In the case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument
46
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.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
SECTION 612.
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
47
of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor Trustee, any
successor Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates shall have the full
force and effect that this Indenture provides for the certificate of authentication of the Trustee;
provided
,
however
, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or consolidation.
SECTION 613.
Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
SECTION 614.
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. The Trustee shall give notice of such appointment in the
manner provided in Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than
U.S.$50,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent files reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so filed.
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If at any time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent, shall be the
successor Authenticating Agent hereunder, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
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This is one of the Securities referred to in the within-mentioned Indenture.
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The Bank of New York Mellon,
as Trustee
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By:
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As Authenticating Agent
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Dated:
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular
Record Date; and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided
, that no such list
need be provided in any case to the extent it would include names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
50
SECTION 703.
Reports by Trustee
.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the provisions of such Section
313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee whenever any Securities are listed on any stock
exchange.
SECTION 704.
Reports by Company
.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a U.S. national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(3) transmit by mail, to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to Clauses (1) and
(2) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such reports shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the
Companys compliance with any of its
51
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers
Certificates).
The
Company shall file with the Trustee such information, documents and
other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the time and in the manner
provided pursuant to the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, AMALGAMATION, CONVEYANCE, STATUTORY
ARRANGEMENT, TRANSFER OR LEASE
SECTION 801.
Company May Consolidate, Etc., Only on Certain Terms
.
(a) Subject to Section 801(c), the Company shall not consolidate with, amalgamate with, or merge with or into or consummate any statutory arrangement with any other Person
or convey, transfer or lease its properties and assets substantially as an entirety to any Person,
and the Company shall not permit any Person to consolidate with, amalgamate with or merge with or
into the Company, unless:
(1) either (i) the Company is the surviving corporation in a merger, amalgamation,
consolidation or statutory arrangement or (ii) in case the Company shall consolidate with,
amalgamate with, merge with or into another Person or consummate a statutory arrangement with
another Person in which such other Person is the surviving entity, or convey, transfer or lease its
assets substantially as an entirety to any Person, the Person formed by or continuing from such
consolidation, amalgamation or statutory arrangement or with or into which the Company is merged or
the Person which acquires by conveyance or transfer or otherwise, or which leases, the properties
and assets of the Company substantially as an entirety shall (A) be a corporation organized and
validly existing under the laws of Canada, the United States of America, or any member country of
the European Union as of December 31, 2003, or any political subdivision of any of the foregoing
and (B) expressly assume (except where such assumption is deemed to have occurred by the sole
operation of law), by an indenture supplemental hereto, executed and delivered to the Trustee, the
due and punctual payment of the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on the part of the Company to be
performed or observed, and the Securities of every series will be valid and binding obligations of
such successor Person entitling the Holders thereof, as against the successor Person, to all the
rights of Holders of Securities under this Indenture;
(2) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have happened
and be continuing; and
(3) the Company or such Person has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, amalgamation, statutory
arrangement, conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such
52
supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
(b) Subject to Section 801(c), any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of any such transaction shall be treated as having been incurred by the
Company or such Subsidiary at the time of such transaction.
(c) The provisions of Section 801(a) and (b) shall not be applicable to the direct or indirect
conveyance, transfer or lease of all or any portion of the stock, undertaking, property, assets or
liabilities of any of the Companys wholly owned Subsidiaries to the Company.
SECTION 802.
Successor Person Substituted
.
Upon any consolidation, amalgamation or statutory arrangement of the Company with, or merger
of the Company with or into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance with Section 801,
the successor Person formed by such consolidation, amalgamation or statutory arrangement or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of any lease, the Company shall be relieved of all obligations
and covenants under this Indenture and the Securities and may be dissolved and liquidated.
In case of any such consolidation, amalgamation, statutory arrangement, merger, conveyance,
transfer or lease, such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession, or successive successions, of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein and in the
Securities; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or to
surrender any right or power herein conferred upon the Company; or
53
(3) to provide for the issuance under this Indenture of Securities in bearer form (including
securities registrable as to principal only) and to provide for exchangeability of such Securities
for Securities issued hereunder in fully registered form, and to make all appropriate changes for
such purpose; or
(4) to establish the form or terms of Securities of any series as permitted by Sections 201
or 301; or
(5) to add to the covenants of the Company for the benefit of the Holders of all Securities
or any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(6) to add any additional Events of Default (and if such Events of Default are to be for the
benefit of less than all series of Securities, stating that such Events of Default are expressly
being included solely for the benefit of such series); or
(7) to secure the Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture as the Company and the Trustee may
deem necessary and desirable,
provided
that such action pursuant to this Clause (9) shall
not adversely affect the rights of the Holders of Securities of any series in any material respect;
or
(10) to conform any provision hereof to the requirements of the Trust Indenture Act or
otherwise as necessary to comply with applicable law of the United States of America or any State
thereof and Canada or of any province or territory thereof to the extent they do not conflict with
the applicable laws of the United States of America heretofore or hereafter enacted; or
(11) to make any change that does not adversely affect the rights of any Holder in any
material respect.
SECTION 902.
Supplemental Indentures With Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
54
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 modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of interest payable
on, any Outstanding Security, or reduce the principal amount of or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the amount of principal of an Original
Issue Discount Security that would be due and payable upon redemption or acceleration or would be
provable in bankruptcy, or adversely affect any right of repayment of the Holder of any Security or
change the Place of Payment where or the coin or currency in which, any Outstanding Security or any
principal (and premium, if any) or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences or reduce the quorum or voting requirements
provided for in this Indenture; or
(3) modify
any of the provisions of this Section, Section 513 or
Section 1009, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby;
provided
,
however
, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to the Trustee and concomitant
changes in this Section and Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8); or
(4) modify
the provisions of Section 1010 in a manner adverse to the Holders.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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.
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
55
this Indenture, the Trustee shall be given, and (subject to Section 601) 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, and that
all conditions precedent have been complied with. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees own rights, duties,
protections, privileges, indemnities, liabilities or immunities under this Indenture or otherwise.
SECTION 904.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906.
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 Company, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Board of Directors, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest
.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of, premium, if any, and interest on the Securities of that
series in accordance with the terms of such Securities and this Indenture. The Company shall pay to the Trustee such amounts for the payment of principal of, premium, if any, or interest on the Securities, as applicable, at or prior to 10:00 a.m. (New York City time) on the applicable Interest Payment Date.
Unless otherwise specified as contemplated by Section 301, the Company shall pay interest on
overdue amounts at the rate set forth in the first paragraph of the Securities, and it shall pay
interest on overdue interest at the same rate (to the extent that the payment of such interest
shall be legally enforceable), which interest on overdue interest shall accrue from the date such
amounts became overdue.
56
SECTION 1002.
Maintenance of Office or Agency
.
The Company will maintain in the Borough of Manhattan, The City of New York and each other
Place of Payment for any series, an office or agency where Securities of that series may be
presented or surrendered for payment, and an office or agency 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 Company initially appoints the
Trustee, acting through its corporate trust office in the Borough of Manhattan, The City of New
York, as its agent for said purposes. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations;
provided
,
however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York and each other Place of Payment for
Securities of any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003.
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or premium, if any, or interest
on any of the Securities of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium, if any, and any 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 Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of and premium, if any, or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to
be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent, (2) give
57
the Trustee 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 (3) at any time
during the continuance of any such default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money or U.S. Government Obligations (including the proceeds thereof and the interest
thereon) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, premium, if any, or interest on any Security and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company at its option on Company Request (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property law) or (if then held
by the Company) shall (unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) 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 Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004.
Statement by Officers as to Default
.
The Company will deliver to the Trustee, on or before October 31 of each fiscal year of the
Company ending after the date hereof, an Officers Certificate covering the preceding fiscal year,
stating whether or not, to the best knowledge of the signers thereof, the Company is in default in
the performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
58
SECTION 1005.
Existence
.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence, rights (charter and statutory) and
franchises;
provided
,
however
, that the Company shall not be required to preserve
any such right or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 1006.
Maintenance of Properties
.
The Company will cause all material properties of the Company used or useful 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 Company and each Restricted Subsidiary may
properly and advantageously conduct their respective businesses at all times;
provided
,
however
, that nothing in this Section shall prevent the Company from selling, abandoning or
otherwise disposing of, or discontinuing the operation or maintenance of, any of such properties if
such action is, in the judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary.
SECTION 1007.
Payment of Taxes
.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, 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 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;
provided
,
however
, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment or governmental charge whose amount,
applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 1008.
Limitations on Liens of Stock of Restricted Subsidiaries
.
Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301, and for so long as any Securities are Outstanding, the Company will not,
and it will not permit any Subsidiary of the Company to, at any time directly or indirectly create,
assume, incur, guarantee or permit to exist any Indebtedness secured by a mortgage, pledge, lien,
security interest, charge, hypothec, floating charge or other encumbrance (any mortgage, pledge,
lien, security interest, charge, hypothec, floating charge or other encumbrance being hereinafter
in this Section referred to as a lien) on the capital stock of any Restricted Subsidiary, of any
successor to substantially all of the business of any Restricted Subsidiary which is also a
Subsidiary of the Company, or of any corporation (other than the Company) having direct or indirect
59
control of any Restricted Subsidiary without making effective provision whereby the Securities
then Outstanding (and, if the Company so elects, any other Indebtedness of the Company that is not
subordinate to the Securities and with respect to which the governing instruments require, or
pursuant to which the Company is otherwise obligated or required, to provide such security) shall
be equally and ratably secured with such secured Indebtedness so long as such other Indebtedness
shall be secured. For purposes of this Section 1008 only, Indebtedness, in addition to those
items specified in Section 101 hereof, shall include any obligation of, or any such obligation
guaranteed by, any Person for the payment of amounts due under a swap agreement or other similar
instrument or agreement or foreign currency hedge exchange or similar instrument or agreement.
If the Company shall hereafter be required to secure the Securities equally and ratably with
any other Indebtedness pursuant to this Section, (i) the Company will promptly deliver to the
Trustee an Officers Certificate stating that the foregoing covenant has been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel the foregoing covenant has been
complied with and that any instruments executed by the Company or any Subsidiary of the Company in
the performance of the foregoing covenant comply with the requirements of the foregoing covenant
and (ii) the Trustee is hereby authorized to enter into an indenture or agreement supplemental
hereto and to take such action, if any, as it may deem advisable to enable it to enforce the rights
of the holders of the Securities so secured.
SECTION 1009.
Waiver of Certain Covenants
.
The Company may omit in any particular instance to comply with any term, provision, covenant
or condition set forth in any covenant provided pursuant to Section 901(5) for the benefit of the
Holders or in any of Sections 1006 to 1008, inclusive, with respect to the Securities of any series
if before or after the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver
60
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
SECTION
1010.
Additional Amounts
.
(a) 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 any province, territory or political
subdivision thereof, or by any authority or agency therein or thereof having power to tax
(Relevant Taxes), except to the extent required by law or by the interpretation or administration
thereof. If the Company is so required to withhold or deduct any amount for or on account of such
Relevant Taxes from any payment made under or with respect to the Securities, the Company 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 be equal to
the amount such Holder would have received if such Relevant Taxes had not been withheld or
deducted;
provided
,
however
, that no Additional Amounts will be payable in respect
of any Securities for or on account of:
(i) any payment to or for the account of any Holder, or beneficial owner, of the Securities
that does not deal at arms-length with the Company (within the meaning of the Tax Act) at the time
such payment is made;
(ii) any Relevant Tax that would not have been imposed if the Holder, or the beneficial owner,
of the Securities complied with the Companys request to provide information concerning his, her or
its nationality, residence or identity or to make a declaration, claim or filing or satisfy any
requirement for information or reporting that is required to establish the eligibility of the
Holder, or the beneficial owner, of the Securities to receive the relevant payment without (or at a
reduced rate of) withholding or deduction for or account of any such Relevant Tax;
(iii) any Relevant Tax that would not have been imposed but for the fact that the Holder, or
the beneficial owner, of the Securities was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically present in, Canada or any
province, territory or political subdivision thereof, or otherwise had some connection with Canada
or any province, territory or political subdivision thereof, other than merely holding such
Securities, or receiving payments under such Securities; or
(iv) any combination of the foregoing.
In addition, the Company will not pay Additional Amounts to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of the payment subject to the Relevant Tax, to
the extent such payment would, under the laws of Canada or any
61
province, territory or political subdivision thereof, be treated as being derived or received
for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to Additional Amounts had it
been the Holder of the Securities.
(b) If the Company is required by law or by the interpretation or administration thereof to
withhold or deduct any Relevant Taxes from any payment under or with respect to the Securities, the
Company will (1) make such withholding or deduction and (2) remit the full amount so deducted or
withheld to the relevant authority in accordance with applicable law. The Company will furnish to
the Holders, within 30 days after the date the payment of any Relevant Taxes is due pursuant to
applicable law, certified copies of tax receipts or other documents evidencing such payment by the
Company.
(c) If the Company is required by law or by the interpretation or administration thereof to
withhold or deduct any Relevant Taxes from any payment under or with respect to the Securities for
which the Company would then have been required to pay Additional Amounts under paragraph (a) of
this Section 1010 and fails to so withhold or deduct, the Company will indemnify and hold harmless
each Holder for the amount of (1) such Relevant Taxes levied or imposed on and paid by such Holder,
(2) any liability (including penalties, interest and expenses) arising from such Relevant Taxes,
and (3) any Relevant Taxes imposed with respect to any payment under clauses (1) or (2) of this
paragraph (c) of this Section 1010.
(d) 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 Trustee an Officers
Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable
and setting forth such other information necessary to enable the Trustee to pay such Additional
Amounts to Holders on the payment date.
(e) Wherever 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 1010 to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
(f) If the Company shall have completed any transaction permitted pursuant to Section
801(a)(1)(ii) whereby the successor Person is organized under the laws of a country other than
Canada or the United States of America or any of their respective political subdivisions, all
references in this Section 1010 to Canada and its political subdivisions shall be deemed to be
references to both Canada and the country in which such successor Person is organized or resident
(or deemed resident for tax purposes) and their respective political subdivisions.
62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101.
Companys Right of Redemption
.
Unless otherwise specified as contemplated by Section 301 with respect to the Securities of a
particular series, and notwithstanding any additional redemption rights that may be so specified,
the Company may, at its option, subject, if required, to the prior approval of the Superintendent,
redeem the Securities of any series after their date of issuance in whole or in part at any time
and from time to time, subject to the provisions of this Section 1101 and the other provisions of
this Article Eleven. Unless otherwise specified as contemplated by Section 301 with respect to the
Securities of a particular series, the redemption price for any Security so redeemed shall be equal
to 100% of the principal amount of such Securities then Outstanding plus accrued and unpaid
interest up to, but excluding, the date fixed for redemption;
provided
,
however
,
that installments of accrued and unpaid interest 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, registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
SECTION 1102.
Applicability of Article
.
Redemption of Securities, as permitted or required by any form of Security issued pursuant to
this Indenture or the documentation providing therefor, shall be made in accordance with such form
of Security or documentation and this Article Eleven;
provided,
however
, that if
any provision of any such form of Security or documentation shall conflict with any provision of
this Article, the provision of such form of Security or documentation shall govern. Except as
otherwise set forth in the form of Security for such series or such documentation, each Security
shall be subject to partial redemption only in the amount of U.S.$1,000 or integral multiples of
U.S.$1,000 in excess thereof.
SECTION 1103.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of the Securities of a
series, the Company shall, at least 45 days but not more than 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or (b) pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers
Certificate and an Opinion of Counsel evidencing compliance with such restriction or condition.
63
SECTION 1104.
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities not previously called
for redemption, by such method as the Trustee in its sole discretion shall deem fair and
appropriate and which may provide for the selection for redemption of a portion of the principal
amount of any Security,
provided
that
the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Security. If less than all the Securities and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities and specified tenor not previously
called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in the case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed. If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected
for redemption.
SECTION 1105.
Notice of Redemption
.
Unless otherwise specified as contemplated by Section 301 with respect to the Securities of a
particular series, 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 its address appearing in the Security Register. Unless the Company defaults in
payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue
on the Securities.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof;
64
(3) if less than all the Outstanding Securities consisting of more than a single Security are
to be redeemed, the identification (and, in the case of partial redemption of any such Securities,
the principal amounts) of the particular Securities to be redeemed and, if less than all the
Outstanding Securities consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date; and
(5) the place or places where each such Security is to be surrendered for payment of the
Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request and delivery of such information to the Trustee
at least 10 days prior to the giving of such notice of redemption, by the Trustee in the name and
at the expense of the Company and shall be irrevocable. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
such notice. In any case, a failure to give such notice by mail or any defect in the notice to the
Holder of any Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
SECTION 1106.
Deposit of Redemption Price
.
At or prior to 10:00 a.m., New York time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and accrued interest payable on, all the Securities which are to be redeemed
on that date.
SECTION 1107.
Securities Payable on Redemption Date
.
Notice of redemption having been given pursuant to Section 1105, the Securities to be so
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 or accrue any 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 any accrued but unpaid interest
to, but excluding, the Redemption Date;
provided
,
however
, that installments of
accrued and unpaid interest 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, registered as
such at the close of business on the relevant Regular Record Dates according to their terms and the
provisions of Section 307, unless, in connection with a Redemption Date falling on an Interest
Payment Date, the Securities of the particular series provide that interest payable
65
on an Interest Payment Date that is a Redemption Date shall be paid to the Person to whom
principal is payable.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
SECTION 1108.
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
SECTION 1109.
Tax Redemption
.
The Securities of a series will be subject to redemption in whole, but not in part, at the
option of the Corporation, at any time, on not less than 30 nor more than 60 days prior written
notice, at a Redemption Price equal to 100% of the principal amount thereof, together with accrued
and unpaid interest thereon to the Redemption Date, in the event that the Company has become or
would become obligated to pay, on the next date on which any amount would be payable with respect
to any such Securities, any Additional Amounts as a result of an amendment to or change in the laws
(including any regulations promulgated thereunder) of Canada (or any province, territory or
political subdivision thereof), or any amendment to or change in any official position regarding
the application or interpretation of such laws or regulations, or judicial decision interpreting
such laws or regulations, which amendment, change or judicial decision is announced or becomes
effective on or after the date of the applicable prospectus by which such Securities are offered
and sold. No redemption shall be made pursuant to this paragraph unless:
(1) the Company shall have received an Opinion of Counsel that Additional Amounts will be
payable on the next payment date in respect of such series of Securities;
(2) the Company shall have delivered to the Trustee an Officers Certificate stating that the
Company is entitled to redeem such Securities pursuant to the terms of such series of Securities;
and
(3) at the time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect.
66
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201.
Companys Option to Effect Defeasance or Covenant Defeasance
.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, the
provisions of this Article Twelve shall apply to each series of Securities, and the Company may
elect, at its option at any time, to have Section 1202 or Section 1203 applied to any Securities
upon compliance with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
SECTION 1202.
Defeasance and Discharge
.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities, the Company shall be deemed to have been discharged from its obligations with respect
to such Securities as provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called Defeasance). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company and upon Company Request, shall execute proper instruments acknowledging the
same), subject to the following, which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Outstanding Securities to receive, solely from the trust
fund described in Section 1204 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;
(2) the Companys obligations with respect to such Securities under Sections 115, 116, 304, 305,
306, 1002, 1003, 1010 and 1108 (and any other applicable provisions of Article Eleven) and with
respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section
1010; (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder; and (4) this
Article. Subject to compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1203 applied to such Securities.
SECTION 1203.
Covenant Defeasance
.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities (1) the Company shall be released from its obligations under Sections 801, Section 1006
to 1008, inclusive, and any covenants provided pursuant to 901(5) for the benefit of the Holders of
such Securities; and (2) the occurrence of any event specified in Sections 501(3) (with respect to
any of Section 801, Sections 1006 to 1008, and any such covenants provided pursuant to Section
901(5)) shall be deemed not to be or result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such
Covenant Defeasance means that,
67
with respect to such 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 specified Section
(to the extent so specified in the case of Section 501(3)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any reference in any
such Section to any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Notwithstanding any Covenant Defeasance with respect to Section 801, any Person that would
otherwise have been required to assume the obligations of the Company pursuant to said Section
shall be required, as a condition to any merger, amalgamation, consolidation, conveyance, transfer
or lease contemplated thereby, to assume the obligations of the Company to the Trustee under
Sections 607 and 1205.
SECTION 1204.
Conditions to Defeasance or Covenant Defeasance
.
(a) The following shall be the conditions to the application of Section 1202 or Section 1203
to any Securities:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) money 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, money in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities or on the Redemption
Date, in accordance with the terms of this Indenture and such Securities.
(2) In the event of an election to have Section 1202 apply to any Securities, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States of America to the
effect that, based upon (A) the Company having received from, or there having been published by,
the United States Internal Revenue Service a ruling or (B) a change in the applicable United States
federal income tax law since the date hereof, the Holders of such Securities will not recognize
gain or loss for United States federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to United States
federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1203 apply to any Securities, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
68
of America to the effect that the Holders of such Securities will not recognize gain or loss
for United States federal income tax purposes as a result of the deposit and Defeasance or Covenant
Defeasance to be effected with respect to such Securities and will be subject to United States
federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Defeasance or Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
501(4) and (5), at any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such 90th day).
(5) The Company shall have delivered to the Trustee an Opinion of Counsel in Canada or a
ruling from Canada Revenue Agency to the effect that the Holders of the Outstanding Securities will
not recognize income, gain or loss for Canadian federal, provincial, or territorial income or other
tax purposes as a result of such Defeasance or Covenant Defeasance and will be subject to Canadian
federal, provincial or territorial income and other tax on the same amounts, in the same manner and
at the same times as would have been the case had such Defeasance or Covenant Defeasance not
occurred (and for the purposes of such opinion, such Canadian counsel shall assume that Holders of
the Outstanding Securities include Holders who are not resident in Canada).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any indenture or other agreement or instrument for borrowed money to
which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under the Investment Company Act or exempt from registration
thereunder.
(8) the Company is not insolvent within the meaning of the
Winding-Up and Restructuring Act
(Canada), the
Assignments and Preferences Act
(Ontario) and the
Fraudulent Conveyances Act
(Ontario) and no act or proceeding has been taken or is pending in connection with, and the Company
has not received notice in respect of and is not in the course of, dissolution, liquidation,
winding up or reorganization.
(9) If such Securities are to be redeemed prior to Stated Maturity (other than from mandatory
sinking fund payments or analogous payments), notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(10) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
69
(b) If the Company shall have completed any transaction permitted pursuant to Section
801(a)(1)(ii) whereby the successor Person is organized under the laws of a country other than
Canada or the United States of America or any of their respective political subdivisions:
(1) the references in clause (4) of the preceding paragraph (a) to the 90th day after the
date of such deposit shall be deemed to be a reference to the day under applicable bankruptcy,
insolvency or similar laws of the country in which such successor Person is organized or any
political subdivision thereof after which such deposit would not be deemed a preferential transfer
that must be returned to such successor Person;
(2) all references in clause (5) of the preceding paragraph (a) to Canada and its political
subdivisions shall be deemed to be references to the country in which such successor Person is
organized or resident (or deemed resident for tax purposes) and their respective political
subdivisions and reference to the Canada Revenue Agency shall be deemed to be reference to the
appropriate taxing authority of such other country; and
(3) the references in clause (8) of the preceding paragraph (a) to the
Winding Up and
Restructuring Act
(Canada), the
Assignments and Preferences Act
(Ontario) and the
Fraudulent
Conveyances Act
(Ontario) shall be deemed to be references to applicable bankruptcy, insolvency or
similar laws of the country in which such successor Person is organized or any political
subdivision thereof.
SECTION 1205.
Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof and the interest thereon) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1206, the Trustee and any
such other trustee are referred to collectively as the Trustee) pursuant to Section 1204 in
respect of any 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
such 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 any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against any U.S. Government Obligations deposited pursuant to Section 1204 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 Outstanding Securities.
Anything in this Article 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 1204 with respect to any
70
Securities which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee or in the opinion
of such other Persons delivered to the Trustee as shall be reasonably satisfactory to the Trustee
(which may be the same opinion delivered to the Trustee under Section 1204(1)), 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, with respect to such Securities.
SECTION 1206.
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1202 or 1203 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1205 with respect
to such Securities in accordance with this Article;
provided
,
however
, that if the
Company makes any payment of principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of
the Holders of such Securities to receive such payment from the money so held in trust.
SECTION 1207.
Qualifying Trustee
.
Any trustee appointed pursuant to Section 1204 for the purpose of holding trust funds
deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the
Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the
Trustee be liable for any acts or omissions of said trustee.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301.
Purposes for Which Meetings May Be Called
.
A meeting of Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302.
Call, Notice and Place of Meetings
.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series, and the
Trustee shall convene a meeting upon receipt of a request of the Company
71
or upon receipt of a request in writing to the Trustee by the Holders of not less than 25% in
principal amount of the Outstanding Securities of any series, for any purpose specified in Section
1301, to be held at such time and at such place in The City of New York, New York, or at such other
place as the Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting. Holders shall
reimburse the Trustee for reasonable out-of-pocket expenses relating to the calling and holding of
such meeting if called by such Holders. The Holders shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the calling of such meeting on behalf of Holders,
including the costs and expenses of defending itself against any claim or liability in connection
with such meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 25% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine the time and the place in The City
of New York, New York, or at such other place for such meeting as the Trustee may approve, and may
call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this
Section.
SECTION 1303.
Persons Entitled to Vote at Meetings
.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder of Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304.
Quorum; Action
.
(a) The Persons entitled to vote 25% in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such series; provided,
however, that, if any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to
vote such specified percentage in principal
72
amount of the Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
(b) Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum
the Persons entitled to vote 10% in principal amount of the Outstanding Securities at the time
shall constitute a quorum for the taking of any action set forth in the notice of the original
meeting.
(c) Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
not less than such specified percentage in principal amount of the Outstanding Securities of such
series.
(d) Any resolution passed or decision taken at any meeting of Holders of Securities of any
series duly held in accordance with this Section shall be binding on all the Holders of Securities
of such series and the related coupons, whether or not present or represented at the meeting.
(e) Notwithstanding the foregoing provisions of this Section 1304, if any action is to be
taken at a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
73
(ii) the principal amount of the Outstanding Securities of such series that vote in favor of
such request, demand, authorization, direction, notice, consent, waiver or other action shall be
taken into account in determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this Indenture.
SECTION 1305.
Determination of Voting Rights; Conduct and Adjournment of Meetings
.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard
to proof of the holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section
104. Such regulations may provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, which need not be a Holder of Securities, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each U.S.$1,000 principal amount of Outstanding Securities of such series held or
represented by him (determined as specified in the definition of Outstanding in Section 101);
provided, however, that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time by the Chairman with consent of the
Holders entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting and voting thereon; and the meeting may be held as so adjourned
without further notice.
74
SECTION 1306.
Counting Votes and Recording Action of Meetings
.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
75
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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MANULIFE FINANCIAL CORPORATION
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By:
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/s/ Peter Levitt
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Name:
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Peter Levitt
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Title:
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Executive Vice President and Treasurer
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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/s/ Joellen McNamara
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Name:
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Joellen McNamara
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Title:
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Sr. Associate
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EXHIBIT A
[SPECIMEN BOND]
(FORM OF FACE OF SECURITY)
[If the Security is an Original Issue Discount Security, insertFor purposes of Section 1271 of
the United States Internal Revenue Code of 1986, as amended, the issue price of this security is
% of its principal amount and the Original Issue Date is
, 20
]
MANULIFE FINANCIAL CORPORATION
[Title of Security]
CUSIP:
MANULIFE FINANCIAL CORPORATION, a corporation organized and existing under the
Insurance
Companies Act
(Canada) (hereinafter called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to [Insert if Global Security-Cede & Co.], or registered assigns, the principal sum of
U.S. Dollars on
[If the Security is to bear interest prior to Maturity,
insert , and to pay interest thereon from
or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
and
in each year, commencing
, at the rate of
% per annum, on the basis of a
360-day year consisting of twelve 30-day months, until the principal hereof is paid or duly
provided for or made available for payment] [(If applicable insert , and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of
% per annum on any overdue
principal and premium and on any overdue installment of interest)].
[If the Security is to bear interest prior to Maturity, insert The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
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 date which is fifteen days (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may either 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 Trustee, notice whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
A-1
Securities of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of
% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such default in payment
to the date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of
% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert any 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, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable, insert -;
provided
,
however
, that at the option of the Company payment of interest may be
made by (i) check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register or (ii) by transfer to an account maintained by the payee in the United
States of America].
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 executed by the Trustee 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.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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MANULIFE FINANCIAL
CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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The Bank of New York Mellon,
as Trustee
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By:
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Authorized Signatory
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Dated:
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A-4
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
,
2010 as supplemented and amended from time to time (herein called the Indenture),
between the Company and The Bank of New York Mellon, as Trustee (herein called the Trustee, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if applicable insert
, limited in aggregate principal amount to U.S.$
].
All terms used in this Security that are defined in the Indenture shall have the meaning
assigned to them in the Indenture.
[If applicable, insert The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days notice by mail, at any time [on or after
, 20
], as a
whole or in part, at the election of the Company. The Redemption Price for any Security so
redeemed shall be equal to 100% of the principal amount of such Securities then Outstanding plus
accrued and unpaid interest up to but not including the date fixed for redemption. In the event of
redemption of this Security in part only, a new Security or Securities of this series for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of the Securities of this series, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Regular Record
Dates according to their terms.]
The Indenture contains provisions for satisfaction, discharge and defeasance of (a) the entire
indebtedness on this security, and (b) certain restrictive covenants and the related Events of
Default upon compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, If an Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.] [If the security is an Original Issue Discount Security, If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to insert formula for determining the
amount.
Upon payment of the amount of principal so declared due and payable [if applicable insert
and of interest on any overdue principal and overdue interest (in each
A-5
case to the extent that the payment of such interest shall be legally enforceable)], all of
the Companys obligations in respect of the payment of the principal of and interest, if any, on
the Securities of this series shall terminate.]
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 of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, 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 the Holder of this Security shall be
conclusive and binding 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 in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest on this Security are payable, 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 new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of U.S.$
and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
A-6
whether or not this Security be overdue, and neither the Company, the Trustee nor any such
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.
A-7
Exhibit 99.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE
, dated as of September 17, 2010 (the
First Supplemental
Indenture
), between
MANULIFE FINANCIAL CORPORATION
, a corporation duly organized and existing
under the Insurance Companies Act (Canada) (the
Company
), having its principal office at
200 Bloor Street East, Toronto, Ontario M4W 1E5, and
THE BANK OF NEW YORK MELLON
, a New York
banking corporation, as trustee (hereinafter called the
Trustee
).
RECITALS
WHEREAS, the Company and the Trustee are parties to a Senior Indenture, dated as of September
17, 2010 (the
Base Indenture
and as supplemented by this First Supplemental Indenture,
the
Indenture
), relating to the issuance from time to time by the Company of its
Securities on terms to be specified at the time of issuance;
WHEREAS, Section 901 of the Base Indenture provides that the Company and the Trustee may,
without the consent of any Holder, enter into a supplemental indenture to provide for the issuance
of and establish the form and terms of the Securities of any series as provided in Sections 201 and
301 thereof;
WHEREAS, pursuant to Sections 201 and 301 of the Base Indenture, the Company desires to
provide for the issuance and establishment of the 2015 Notes and 2020 Notes (each as defined
herein) under the Indenture, and the form and terms thereof, as hereinafter set forth;
WHEREAS, in connection with the issuance of the 2015 Notes and the 2020 Notes, the Company has
duly authorized the execution and delivery of this First Supplemental Indenture to establish the
forms and terms of the 2015 Notes and the 2020 Notes as hereinafter described; and
WHEREAS, all conditions and requirements of the Base Indenture necessary to make this First
Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been
performed and fulfilled by the parties hereto.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, receipt of which is hereby acknowledged by the parties hereto, the parties hereto
agree, as follows:
ARTICLE I
DEFINITIONS
Section 1.01
General Definitions
. For purposes of this First Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the meanings specified in the
Base Indenture;
(b) All references to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of the Base Indenture; and
(c) The terms herein, hereof, hereunder and other words of similar import refer to this
First Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision.
Comparable Treasury Issue
means the U.S. Treasury security selected by the Premium
Calculation Agent as having a maturity comparable to the term remaining from the Redemption Date to
September 17, 2015 in the case of the 2015 Notes and to September 17, 2020 in the case of the 2020
Notes (in each case, the
Remaining Life
) that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the Remaining Life.
Comparable Treasury Price
means, with respect to a Redemption Date (1) the average
of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if the Premium Calculation Agent obtains
fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
Premium Calculation Agent
means an investment banking institution of national
standing appointed by the Company.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Premium Calculation Agent, of the
bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Premium Calculation Agent at 3:30 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Reference Treasury Dealers
means (1) Morgan Stanley & Co. Incorporated, Citigroup
Global Markets Inc., Banc of America Securities LLC and Goldman, Sachs & Co. and their respective
successors;
provided, however
, that if any of the foregoing shall cease to be a primary
U.S. government securities dealer in the United States (a
Primary Treasury Dealer
) the
Company shall substitute therefor another Primary Treasury Dealer, and (2) any other Primary
Treasury Dealers selected by the Premium Calculation Agent after consultation with the Company.
Treasury Rate
means, with respect to any Redemption Date, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using
a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
ARTICLE II
THE 2015 NOTES
Section 2.01
Title of Securities
.
There shall be a series of Securities designated
the 3.40% Senior Notes due 2015 of the Company (the
2015 Notes
).
Section 2.02
Limitation of Aggregate Principal Amount
.
The aggregate principal amount
of the 2015 Notes shall initially be limited to U.S.$600,000,000 (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
2015 Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Base Indenture and except for any
Securities which, pursuant to Section 303 of the Base Indenture, are deemed never to have been
authenticated and delivered thereunder). The Company may, from time to time, without the consent
of the Holders of the 2015 Notes, create and issue additional notes having the same terms and
conditions as the 2015 Notes in all respects or in all respects except for issue date, issue price
and, if applicable, the first date on which interest accrues
2
and the first payment of interest thereon (
Additional 2015 Notes
). Additional 2015
Notes issued in this manner will be consolidated with, and will form a single series with, the 2015
Notes, unless such Additional 2015 Notes will not be treated as fungible with the 2015 Notes for
U.S. federal income tax purposes. The 2015 Notes and any such Additional 2015 Notes would rank
equally and ratably.
Section 2.03
Principal Payment Date
.
The principal amount of the 2015 Notes
Outstanding (together with any accrued and unpaid interest) shall be payable in a single
installment on September 17, 2015, which date shall be the Stated Maturity of the 2015 Notes.
Section 2.04
Interest and Interest Rates
.
The 2015 Notes shall bear interest at a
rate of 3.40% per year from September 17, 2010, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in arrears on March 17 and
September 17 of each year, commencing March 17, 2011 until the principal thereof is paid or made
available for payment. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of interest payable
for any period shorter than a full interest period shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual number of calendar days elapsed in a partial month in such
period. Any payment of principal, premium or interest required to be made on an Interest Payment
Date that is not a Business Day will be made on the next succeeding Business Day, and no interest
will accrue on that payment for the period from and after the Interest Payment Date to the date of
payment on the next succeeding Business Day.
Section 2.05
Place of Payment
.
The Place of Payment where the 2015 Notes may be
presented or surrendered for payment, where the 2015 Notes may be surrendered for registration of
transfer or exchange and where notices and demand to or upon the Company in respect of the 2015
Notes and the Indenture may be served initially shall be the Corporate Trust Office of the Trustee
in the Borough of Manhattan, City of New York.
Section 2.06
Optional Redemption
.
(a) Section 1101 of the Base Indenture shall not apply to the 2015 Notes.
(b) The Company may redeem the 2015 Notes, at any time, and from time to time, in whole or in
part, at a redemption price equal to the greater of (i) 100% of the principal amount of such 2015
Notes to be redeemed and (ii) the sum, as calculated by the Premium Calculation Agent, of the
present values of the remaining scheduled payments of principal and interest (excluding interest
accrued to the Redemption Date) on the 2015 Notes to be redeemed from the Redemption Date to the
Stated Maturity discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate, plus 30 basis points, plus, in each case,
accrued and unpaid interest on the 2015 Notes to, but excluding, the Redemption Date (the
Redemption Price
). Unless the Company defaults in payment of the Redemption Price,
interest will cease to accrue on the 2015 Notes called for redemption on and after the Redemption
Date.
Section 2.07
No Sinking Fund
.
The 2015 Notes are not entitled to the benefit of any
sinking fund.
Section 2.08
Form
.
The 2015 Notes shall be issued initially as registered securities
in the form of one or more permanent notes in global form, without coupons, substantially in the
form attached hereto as Exhibit A, deposited with The Bank of New York Mellon, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as herein provided.
3
Section 2.09
Denomination
.
The 2015 Notes shall be issuable only in denominations of
US$2,000 and integral multiples of US$1,000 in excess thereof. The 2015 Notes shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such plans as the
officers of the Company executing the same may determine with the approval of the Trustee.
Section 2.10
Depositary
.
The Depository Trust Company shall be the initial
Depositary, until a successor shall have been appointed and become such pursuant to the applicable
provisions of the Base Indenture, and thereafter, Depositary shall mean or include such
successor.
Section 2.11
Security Registrar and Paying Agent for the 2015 Notes
.
The Company
shall initially serve as the Central Security Registrar and the Trustee shall initially serve as
Branch Security Registrar and as the Paying Agent.
Section 2.12
Defeasance
.
The provisions of Article Twelve of the Indenture shall
apply to the 2015 Notes.
ARTICLE III
THE 2020 NOTES
Section 3.01
Title of Securities
.
There shall be a series of Securities designated
the 4.90% Senior Notes due 2020 of the Company (the
2020 Notes
).
Section 3.02
Limitation of Aggregate Principal Amount
.
The aggregate principal amount
of the 2020 Notes shall initially be limited to U.S.$500,000,000 (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
2020 Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Base Indenture and except for any
Securities which, pursuant to Section 303 of the Base Indenture, are deemed never to have been
authenticated and delivered thereunder). The Company may, from time to time, without the consent
of the Holders of the 2020 Notes, create and issue additional notes having the same terms and
conditions as the 2020 Notes in all respects or in all respects except for issue date, issue price
and, if applicable, the first date on which interest accrues and the first payment of interest
thereon (
Additional 2020 Notes
). Additional 2020 Notes issued in this manner will be
consolidated with, and will form a single series with, the 2020 Notes, unless such Additional 2020
Notes will not be treated as fungible with the 2020 Notes for U.S. federal income tax purposes. The
2020 Notes and any such Additional 2020 Notes would rank equally and ratably.
Section 3.03
Principal Payment Date
.
The principal amount of the 2020 Notes
Outstanding (together with any accrued and unpaid interest) shall be payable in a single
installment on September 17, 2020, which date shall be the Stated Maturity of the 2020 Notes.
Section 3.04
Interest and Interest Rates
.
The 2020 Notes shall bear interest at a
rate of 4.90% per year from September 17, 2010, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in arrears on March 17 and
September 17 of each year, commencing March 17, 2011 until the principal thereof is paid or made
available for payment. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of interest payable
for any period shorter than a full interest period shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual number of calendar days elapsed in a partial month in such
period. Any payment of principal, premium or interest required to be made on an Interest Payment
Date that is not a Business Day will be made on the next succeeding Business Day, and no interest
will accrue on that payment for the period from and after the Interest Payment Date to the date of
payment on the next succeeding Business Day.
4
Section 3.05
Place of Payment
.
The Place of Payment where the 2020 Notes may be
presented or surrendered for payment, where the 2020 Notes may be surrendered for registration of
transfer or exchange and where notices and demand to or upon the Company in respect of the 2020
Notes and the Indenture may be served initially shall be the Corporate Trust Office of the Trustee
in the Borough of Manhattan, City of New York.
Section 3.06
Optional Redemption
.
(a) Section 1101 of the Base Indenture shall not apply to the 2020 Notes.
(b) The Company may redeem the 2020 Notes, at any time, and from time to time, in whole or in
part, at a redemption price equal to the greater of (i) 100% of the principal amount of such 2020
Notes to be redeemed and (ii) the sum, as calculated by the Premium Calculation Agent, of the
present values of the remaining scheduled payments of principal and interest (excluding interest
accrued to the Redemption Date) on the 2020 Notes to be redeemed from the Redemption Date to the
Stated Maturity discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate, plus 35 basis points, plus, in each case,
accrued and unpaid interest on the 2020 Notes to, but excluding, the Redemption Date (the
Redemption Price
). Unless the Company defaults in payment of the Redemption Price,
interest will cease to accrue on the 2020 Notes called for redemption on and after the Redemption
Date.
Section 3.07
No Sinking Fund
.
The 2020 Notes are not entitled to the benefit of any
sinking fund.
Section 3.08
Form
.
The 2020 Notes shall be issued initially as registered securities
in the form of one or more permanent notes in global form, without coupons, substantially in the
form attached hereto as Exhibit B, deposited with The Bank of New York Mellon, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as herein provided.
Section 3.09
Denomination
.
The 2020 Notes shall be issuable only in denominations of
US$2,000 and integral multiples of US$1,000 in excess thereof. The 2020 Notes shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such plans as the
officers of the Company executing the same may determine with the approval of the Trustee.
Section 3.10
Depositary
.
The Depository Trust Company shall be the initial
Depositary, until a successor shall have been appointed and become such pursuant to the applicable
provisions of the Base Indenture, and thereafter, Depositary shall mean or include such
successor.
Section 3.11
Security Registrar and Paying Agent for the 2020 Notes
.
The Company
shall initially serve as the Central Security Registrar and the Trustee shall initially serve as
Branch Security Registrar and as the Paying Agent.
Section 3.12
Defeasance
.
The provisions of Article Twelve of the Indenture shall
apply to the 2020 Notes.
ARTICLE IV
MISCELLANEOUS
Section 4.01
Integral Part; Effect of Supplement on Indenture
.
This First
Supplemental Indenture constitutes an integral part of the Indenture. Except for the amendments
and supplements made by this First Supplemental Indenture, the Base Indenture shall remain in full
force and effect as executed.
5
Section 4.02
Adoption, Ratification and Confirmation
.
The Indenture, as supplemented
by this First Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
Section 4.03
Trustee Not Responsible for Recitals
.
The recitals in this First
Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the
correctness of such recitals. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
Section 4.04
Counterparts
.
This First Supplemental Indenture may be executed in
multiple counterparts, each of which shall be regarded for all purposes as an original and all of
which shall constitute but one and the same instrument.
Section 4.05
Governing Law
.
This First Supplemental Indenture, the 2015 Notes and the
2020 Notes shall be governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into, in each case, performed in said state,
including all matters of construction, validity and performance.
[
signature page follows
]
6
IN WITNESS WHEREOF
, the Company and the Trustee have executed this First Supplemental
Indenture as of the date first above written.
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MANULIFE FINANCIAL CORPORATION
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By:
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/s/ Peter Levitt
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Name:
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Peter Levitt
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Title:
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Executive Vice President and
Treasurer
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[
Signature Page to First Supplemental Indenture
]
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THE BANK OF NEW YORK MELLON
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By:
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/s/ Joellen McNamara
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Name:
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Joellen McNamara
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Title:
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Sr. Associate
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[
Signature Page to First Supplemental Indenture
]
Exhibit A
(FORM OF FACE OF NOTE)
[THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. EVERY NOTE
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE WILL
BE IN GLOBAL FORM, SUBJECT TO THE FOREGOING.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
1
MANULIFE FINANCIAL CORPORATION
3.40% Senior Notes Due 2015
CUSIP: 56501R AA4
MANULIFE FINANCIAL CORPORATION, a corporation organized and existing under the
Insurance
Companies Act
(Canada) (hereinafter called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to ________, or registered assigns, the principal sum of
U.S. Dollars
(U.S.$________) on September 17, 2015 (the Stated Maturity), and to pay interest thereon from
September 17, 2010 or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in
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A-1
arrears on March 17 and September 17 of each year (each such
date, an Interest Payment Date), commencing March 17, 2011, at the rate of 3.40% per year, until
the principal hereof is paid or duly provided for or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. The amount of interest payable for any period shorter than a full interest
period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual
number of calendar days elapsed in a partial month in such period. Any payment of principal,
premium or interest required to be made on an Interest Payment Date that is not a Business Day will
be made on the next succeeding Business Day, and no interest will accrue on that payment for the
period from and after the Interest Payment Date to the date of payment on the next succeeding
Business Day. Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in New York, New York, Toronto, Ontario, the Corporate
Trust Office or any Place of Payment are authorized or obligated by law or executive order to
close.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name this Note (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 date which is fifteen days (whether or not a Business Day) next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the person in whose
name this Note (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 Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this Note will be made
at the office or agency of the Company maintained for that purpose in The City of New York, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts;
provided, however
, that at the option of the Company payment
of interest may be made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by transfer to an account maintained by the
payee in the United States of America.
Reference is hereby made to the further provisions of this Note 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 executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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MANULIFE FINANCIAL CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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The Bank of New York Mellon,
as Trustee
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By:
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Authorized Signatory
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Dated:
A-4
FORM OF REVERSE OF NOTE
This Note is one of a duly authorized issue of securities of the Company (herein called the
Notes), issued and to be issued in one or more series under an Indenture, dated as of September
17, 2010 (the Indenture), between the Company and The Bank of New York Mellon, as Trustee (herein
called the Trustee, which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture, dated as of September 17, 2010, between the
Company and the Trustee (the First Supplemental Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders
of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof. The Notes are issued pursuant to the
Indenture and are limited in aggregate principal amount to U.S.$600,000,000 (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Indenture and except for any Notes
which, pursuant to Section 303 of the Indenture, are deemed never to have been authenticated and
delivered thereunder);
provided, however
, that the Company may from time to time, without the
consent of the Holders of the Notes, create and issue additional notes having the same terms and
conditions as the Notes in all respects or in all respects except for issue date, issue price and,
if applicable, the first date on which interest accrues and the first payment of interest thereon.
Additional notes issued in this manner will be consolidated with, and will form a single series
with, the Notes, unless such additional notes will not be treated as fungible with the Notes for
U.S. federal income tax purposes. The Notes and any such additional notes would rank equally and
ratably.
All terms used in this Note that are defined in the Indenture shall have the meaning assigned
to them in the Indenture.
In accordance with Section 2.06 of the First Supplemental Indenture, pursuant to the procedure
set forth in Article XI of the Indenture, the Notes may be redeemed at the option of the Company,
at any time, and from time to time, in whole or in part, at a redemption price equal to the greater
of (i) 100% of the principal amount of such Notes to be redeemed and (ii) the sum, as calculated by
the Premium Calculation Agent, of the present values of the remaining scheduled payments of
principal and interest (excluding interest accrued to the Redemption Date) on the Notes to be
redeemed from the Redemption Date to the Stated Maturity discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate, plus 30 basis points, plus, in each case, accrued and unpaid interest on the Notes to, but
excluding, the Redemption Date (the Redemption Price). Unless the Company defaults in payment of
the Redemption Price, interest will cease to accrue on the Notes called for redemption on and after
the Redemption Date.
Comparable Treasury Issue means the U.S. Treasury security selected by the Premium
Calculation Agent as having a maturity comparable to the term remaining from the Redemption Date to
September 17, 2015 (the Remaining Life) that would be utilized, at the
A-5
time of selection and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the Remaining Life.
Comparable Treasury Price means, with respect to a Redemption Date (1) the average of five
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (2) if the Premium Calculation Agent obtains fewer
than five such Reference Treasury Dealer Quotations, the average of all such quotations.
Premium Calculation Agent means an investment banking institution of national standing
appointed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Premium Calculation Agent, of the bid
and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Premium Calculation Agent at 3:30 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Reference Treasury Dealers means (1) Morgan Stanley & Co. Incorporated, Citigroup Global
Markets Inc., Banc of America Securities LLC and Goldman, Sachs & Co. and their respective
successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S.
government securities dealer in the United States (a Primary Treasury Dealer) the Company shall
substitute therefor another Primary Treasury Dealer, and (2) any other Primary Treasury Dealers
selected by the Premium Calculation Agent after consultation with the Company.
Treasury Rate means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the
third Business Day preceding the Redemption Date.
In accordance with Section 1109 of the Indenture, pursuant to the procedure set forth in
Article XI of the Indenture, the Notes may be redeemed at the option of the Company, in whole but
not in part, at any time, on not less than 30 nor more than 60 days prior written notice, at a
Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid
interest thereon to, but excluding, the Redemption Date, in the event that the Company has become
or would become obligated to pay, on the next date on which any amount would be payable with
respect to any such Notes, any Additional Amounts as a result of an amendment to or change in the
laws (including any regulations promulgated thereunder) of Canada (or any province, territory or
political subdivision thereof), or any amendment to or change in any official position regarding
the application or interpretation of such laws or regulations, or judicial decision interpreting
such laws or regulations, which amendment, change or judicial decision is announced or becomes
effective on or after September 14, 2010. No redemption shall be made pursuant to this paragraph
unless: (1) the Company shall have received an Opinion of Counsel that Additional Amounts will be
payable on the next payment
A-6
date in respect of such series of Notes; (2) the Company shall have delivered to the Trustee
an Officers Certificate stating that the Company is entitled to redeem such Notes pursuant to the
terms of such series of Notes; and (3) at the time such notice of redemption is given, such
obligation to pay such Additional Amounts remains in effect.
Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of the Notes of this series, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Regular Record
Dates according to their terms.
The Indenture contains provisions for satisfaction, discharge and defeasance of (a) the entire
indebtedness evidenced by this Note, and (b) certain restrictive covenants and the related Events
of Default upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture. The Indenture contains provisions permitting the Holders of not
less than a majority in aggregate principal amount of the Outstanding Notes, on behalf of all of
the Holders of the Notes, to waive any Event of Default under the Indenture and its consequences,
subject to Section 513 of the Indenture.
Upon payment of the amount of principal so declared due and payable and of interest on any
overdue principal and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Companys obligations in respect of the payment
of the principal of and interest, if any, on the Notes of this series shall terminate.
In accordance with Section 1010 of the Indenture, all payments made by or on behalf of the
Company under or with respect to the Notes 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 any
province, territory or political subdivision thereof, or by any authority or agency therein or
thereof having power to tax (Relevant Taxes), except to the extent required by law or by the
interpretation or administration thereof. If the Company is so required to withhold or deduct any
amount for or on account of such Relevant Taxes from any payment made under or with respect to the
Notes, the Company 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 be equal to the amount such Holder would have received if such Relevant Taxes had
not been withheld or deducted;
provided, however
, that no Additional Amounts will be payable in
respect of any Notes for or on account of:
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(1)
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any payment to or for the account of any Holder, or beneficial owner, of the
Notes that does not deal at arms-length with the Company (within the meaning of the
Tax Act) at the time such payment is made;
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(2)
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any Relevant Tax that would not have been imposed if the Holder, or the
beneficial owner, of the Notes complied with the Companys request to provide
information concerning his, her or its nationality, residence or identity or to make a
declaration, claim or filing or satisfy any requirement for information or reporting
that is required to establish the eligibility of the Holder, or the beneficial owner,
of the Notes to receive the relevant payment without (or at a reduced rate of)
withholding or deduction for or account of any such Relevant Tax;
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(3)
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any Relevant Tax that would not have been imposed but for the fact that the
Holder, or the beneficial owner, of the Notes was a resident, domiciliary or national
of, or engaged in business or maintained a permanent establishment or was physically
present in, Canada or any province, territory or political subdivision thereof, or
otherwise had some connection with Canada or any province, territory or political
subdivision thereof, other than merely holding such Notes, or receiving payments under
such Notes; or
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(4)
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any combination of the foregoing.
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In addition, the Company will not pay Additional Amounts to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of the payment subject to the Relevant Tax, to
the extent such payment would, under the laws of Canada or any province, territory or political
subdivision thereof, be treated as being derived or received for tax purposes by a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who
would not have been entitled to Additional Amounts had it been the Holder of the Notes.
Wherever in this Note 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 this Note, such
mention shall be deemed to include mention of the payment of any Additional Amount that may be
payable as provided above.
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 of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, 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 the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
A-8
No reference herein to the Indenture and no provision of this Note 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 Note 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 Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest on this Note are payable, 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 new Notes, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000
and integral multiples of $1,000 in excess thereof. [This Global Note is exchangeable for Notes in
definitive form only under certain limited circumstances set forth in the Indenture.]
2
As provided in the Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether or not this Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS.
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A-9
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney
to transfer such Note on the books of the Company with full power of substitution in the premises.
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Your Signature:
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By:
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Date:
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Signature Guarantee:
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By:
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(Participant in a Recognized Signature
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Guaranty Medallion Program)
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Date:
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A-10
Exhibit B
(FORM OF FACE OF NOTE)
[THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. EVERY NOTE
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE WILL
BE IN GLOBAL FORM, SUBJECT TO THE FOREGOING.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
1
MANULIFE FINANCIAL CORPORATION
4.90% Senior Notes Due 2020
CUSIP: 56501R AB2
MANULIFE FINANCIAL CORPORATION, a corporation organized and existing under the
Insurance
Companies Act
(Canada) (hereinafter called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to ________, or registered assigns, the principal sum of
__________________
U.S. Dollars
(U.S.$________) on September 17, 2020 (the Stated Maturity), and to pay interest thereon from
September 17, 2010 or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in
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B-1
arrears on March 17 and September 17 of each year (each such date, an Interest Payment
Date), commencing March 17, 2011, at the rate of 4.90% per year, until the principal hereof is
paid or duly provided for or made available for payment. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest payable for any period shorter than a full interest period shall be computed
on the basis of a 360-day year of twelve 30-day months and the actual number of calendar days
elapsed in a partial month in such period. Any payment of principal, premium or interest required
to be made on an Interest Payment Date that is not a Business Day will be made on the next
succeeding Business Day, and no interest will accrue on that payment for the period from and after
the Interest Payment Date to the date of payment on the next succeeding Business Day. Business
Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York, New York, Toronto, Ontario, the Corporate Trust Office or any
Place of Payment are authorized or obligated by law or executive order to close.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name this Note (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 date which is fifteen days (whether or not a Business Day) next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the person in whose
name this Note (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 Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this Note will be made
at the office or agency of the Company maintained for that purpose in The City of New York, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts;
provided, however
, that at the option of the Company payment
of interest may be made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by transfer to an account maintained by the
payee in the United States of America.
Reference is hereby made to the further provisions of this Note 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 executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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MANULIFE FINANCIAL CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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B-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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The Bank of New York Mellon,
as Trustee
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By:
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Authorized Signatory
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Dated:
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B-4
FORM OF REVERSE OF NOTE
This Note is one of a duly authorized issue of securities of the Company (herein called the
Notes), issued and to be issued in one or more series under an Indenture, dated as of September
17, 2010 (the Indenture), between the Company and The Bank of New York Mellon, as Trustee (herein
called the Trustee, which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture, dated as of September 17, 2010, between the
Company and the Trustee (the First Supplemental Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders
of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof. The Notes are issued pursuant to the
Indenture and are limited in aggregate principal amount to U.S.$500,000,000 (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Indenture and except for any Notes
which, pursuant to Section 303 of the Indenture, are deemed never to have been authenticated and
delivered thereunder);
provided, however
, that the Company may from time to time, without the
consent of the Holders of the Notes, create and issue additional notes having the same terms and
conditions as the Notes in all respects or in all respects except for issue date, issue price and,
if applicable, the first date on which interest accrues and the first payment of interest thereon.
Additional notes issued in this manner will be consolidated with, and will form a single series
with, the Notes, unless such additional notes will not be treated as fungible with the Notes for
U.S. federal income tax purposes. The Notes and any such additional notes would rank equally and
ratably.
All terms used in this Note that are defined in the Indenture shall have the meaning assigned
to them in the Indenture.
In accordance with Section 2.06 of the First Supplemental Indenture, pursuant to the procedure
set forth in Article XI of the Indenture, the Notes may be redeemed at the option of the Company,
at any time, and from time to time, in whole or in part, at a redemption price equal to the greater
of (i) 100% of the principal amount of such Notes to be redeemed and (ii) the sum, as calculated by
the Premium Calculation Agent, of the present values of the remaining scheduled payments of
principal and interest (excluding interest accrued to the Redemption Date) on the Notes to be
redeemed from the Redemption Date to the Stated Maturity discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate, plus 35 basis points, plus, in each case, accrued and unpaid interest on the Notes to, but
excluding, the Redemption Date (the Redemption Price). Unless the Company defaults in payment of
the Redemption Price, interest will cease to accrue on the Notes called for redemption on and after
the Redemption Date.
Comparable Treasury Issue means the U.S. Treasury security selected by the Premium
Calculation Agent as having a maturity comparable to the term remaining from the Redemption Date to
September 17, 2020 (the Remaining Life) that would be utilized, at the
B-5
time of selection and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the Remaining Life.
Comparable Treasury Price means, with respect to a Redemption Date (1) the average of five
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (2) if the Premium Calculation Agent obtains fewer
than five such Reference Treasury Dealer Quotations, the average of all such quotations.
Premium Calculation Agent means an investment banking institution of national standing
appointed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Premium Calculation Agent, of the bid
and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Premium Calculation Agent at 3:30 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Reference Treasury Dealers means (1) Morgan Stanley & Co. Incorporated, Citigroup Global
Markets Inc., Banc of America Securities LLC and Goldman, Sachs & Co. and their respective
successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S.
government securities dealer in the United States (a Primary Treasury Dealer) the Company shall
substitute therefor another Primary Treasury Dealer, and (2) any other Primary Treasury Dealers
selected by the Premium Calculation Agent after consultation with the Company.
Treasury Rate means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the
third Business Day preceding the Redemption Date.
In accordance with Section 1109 of the Indenture, pursuant to the procedure set forth in
Article XI of the Indenture, the Notes may be redeemed at the option of the Company, in whole but
not in part, at any time, on not less than 30 nor more than 60 days prior written notice, at a
Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid
interest thereon to, but excluding, the Redemption Date, in the event that the Company has become
or would become obligated to pay, on the next date on which any amount would be payable with
respect to any such Notes, any Additional Amounts as a result of an amendment to or change in the
laws (including any regulations promulgated thereunder) of Canada (or any province, territory or
political subdivision thereof), or any amendment to or change in any official position regarding
the application or interpretation of such laws or regulations, or judicial decision interpreting
such laws or regulations, which amendment, change or judicial decision is announced or becomes
effective on or after September 14, 2010. No redemption shall be made pursuant to this paragraph
unless: (1) the Company shall have received an Opinion of Counsel that Additional Amounts will be
payable on the next payment
B-6
date in respect of such series of Notes; (2) the Company shall have delivered to the Trustee
an Officers Certificate stating that the Company is entitled to redeem such Notes pursuant to the
terms of such series of Notes; and (3) at the time such notice of redemption is given, such
obligation to pay such Additional Amounts remains in effect.
Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of the Notes of this series, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Regular Record
Dates according to their terms.
The Indenture contains provisions for satisfaction, discharge and defeasance of (a) the entire
indebtedness evidenced by this Note, and (b) certain restrictive covenants and the related Events
of Default upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture. The Indenture contains provisions permitting the Holders of not
less than a majority in aggregate principal amount of the Outstanding Notes, on behalf of all of
the Holders of the Notes, to waive any Event of Default under the Indenture and its consequences,
subject to Section 513 of the Indenture.
Upon payment of the amount of principal so declared due and payable and of interest on any
overdue principal and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Companys obligations in respect of the payment
of the principal of and interest, if any, on the Notes of this series shall terminate.
In accordance with Section 1010 of the Indenture, all payments made by or on behalf of the
Company under or with respect to the Notes 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 any
province, territory or political subdivision thereof, or by any authority or agency therein or
thereof having power to tax (Relevant Taxes), except to the extent required by law or by the
interpretation or administration thereof. If the Company is so required to withhold or deduct any
amount for or on account of such Relevant Taxes from any payment made under or with respect to the
Notes, the Company 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 be equal to the amount such Holder would have received if such Relevant Taxes had
not been withheld or deducted;
provided, however
, that no Additional Amounts will be payable in
respect of any Notes for or on account of:
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(1)
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any payment to or for the account of any Holder, or beneficial owner, of the
Notes that does not deal at arms-length with the Company (within the meaning of the
Tax Act) at the time such payment is made;
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B-7
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(2)
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any Relevant Tax that would not have been imposed if the Holder, or the
beneficial owner, of the Notes complied with the Companys request to provide
information concerning his, her or its nationality, residence or identity or to make a
declaration, claim or filing or satisfy any requirement for information or reporting
that is required to establish the eligibility of the Holder, or the beneficial owner,
of the Notes to receive the relevant payment without (or at a reduced rate of)
withholding or deduction for or account of any such Relevant Tax;
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(3)
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any Relevant Tax that would not have been imposed but for the fact that the
Holder, or the beneficial owner, of the Notes was a resident, domiciliary or national
of, or engaged in business or maintained a permanent establishment or was physically
present in, Canada or any province, territory or political subdivision thereof, or
otherwise had some connection with Canada or any province, territory or political
subdivision thereof, other than merely holding such Notes, or receiving payments under
such Notes; or
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(4)
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any combination of the foregoing.
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In addition, the Company will not pay Additional Amounts to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of the payment subject to the Relevant Tax, to
the extent such payment would, under the laws of Canada or any province, territory or political
subdivision thereof, be treated as being derived or received for tax purposes by a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who
would not have been entitled to Additional Amounts had it been the Holder of the Notes.
Wherever in this Note 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 this Note, such
mention shall be deemed to include mention of the payment of any Additional Amount that may be
payable as provided above.
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 of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, 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 the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
B-8
No reference herein to the Indenture and no provision of this Note 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 Note 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 Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest on this Note are payable, 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 new Notes, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000
and integral multiples of $1,000 in excess thereof. [This Global Note is exchangeable for Notes in
definitive form only under certain limited circumstances set forth in the Indenture.]
2
As provided in the Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether or not this Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS.
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2
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Insert in Global Notes only
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B-9
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney
to transfer such Note on the books of the Company with full power of substitution in the premises.
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Your Signature:
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By:
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Date:
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Signature Guarantee:
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By:
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(Participant in a Recognized Signature
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Guaranty Medallion Program)
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Date:
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B-10