As filed with the Securities and Exchange Commission on August 5, 2011
Registration No.
333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-9
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
(Exact Name of Co-Registrants as Specified in their Charter)
(Provinces or Other Jurisdictions of Incorporation or Organization)
(Primary Standard Industrial Classification Code Numbers)
(I.R.S. Employee Identification Nos.)
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1, carrefour Alexander-Graham-Bell
Building A, 8th Floor
Verdun, Québec
Canada H3E 3B3
(514) 870-8777
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1, carrefour Alexander-Graham-Bell
Building A, 8th Floor
Verdun, Québec
Canada H3E 3B3
(514) 870-8777
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(Address, including postal code, and telephone number, including area code, of Co-Registrants principal executive office)
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Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
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Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
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(Name, Address (Including Zip Code) and Telephone Number (Including Area Code) of Agent for Service in the United States)
Copies to:
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Alain F. Dussault
Corporate Secretary
BCE Inc. and Bell Canada
1, carrefour Alexander-Graham-Bell
Building A, 7th Floor
Verdun, Québec
Canada H3E 3B3
(514) 786-3891
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Donald R. Crawshaw
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
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Approximate date of commencement of proposed sale of the securities to the public: From
time to time after this registration statement becomes effective.
Province of Québec, Canada
(Principal Jurisdiction Regulating this Offering)
It is proposed that this filing shall become effective (check appropriate box):
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A.
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upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an
offering being made contemporaneously in the United States and Canada).
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B.
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at some future date (check appropriate box below):
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1.
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Pursuant to Rule 467(b) on ( ) at ( ) (designate a time
not sooner than seven calendar days after filing).
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2.
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Pursuant to Rule 467(b) on ( ) at ( ) (designate a time
seven calendar days or sooner after filing) because the securities regulatory authority in
the review jurisdiction has issued a receipt or notification of clearance on ( ).
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3.
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Pursuant to Rule 467(b) as soon as practicable after notification of the
Commission by the registrant or the Canadian securities regulatory authority of the review
jurisdiction that a receipt or notification of clearance has been issued with respect
hereto.
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4.
¨
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After the filing of the next amendment to this form (if preliminary material
is being filed).
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If any of the securities being registered on this Form F-9 are to be offered on a delayed or
continuous basis pursuant to the home jurisdictions shelf prospectus offering procedures, check
the following box.
þ
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Offering Price Per
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Aggregate Offering
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Registration Fee
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Securities to be Registered
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Amount to be Registered
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Unit (1)
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Price (1)
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(1)
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Debt Securities of Bell Canada
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US$2,616,700,000
(3)
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100
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%
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US$2,616,700,000
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US$303,798.87
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Guarantee of BCE Inc. of Bell Canada Debt
Securities
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(2)
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(2)
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(2)
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None
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(1)
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Estimated solely for purposes of calculating the registration fee.
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(2)
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No separate consideration will be received for the guarantee of BCE Inc. of the debt
securities of Bell Canada, and so no separate fee is payable with respect to the guarantee.
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(3)
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This amount represents the U.S. dollar value of CDN$3,000,000,000 based on an exchange rate
of US$1.00 = CDN$0.9626, the Bank of Canada closing exchange rate on August 3, 2011, (equal to
US$3,116,700,000 less US$500,000,000, representing the unissued Debt Securities of Bell
Canada previously registered pursuant to Registration Statement No. 333-11228).
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Pursuant to Rule 429 under the Securities Act, the prospectus contained in this registration
statement relates to Registration Statement No. 333-11228.
The Co-Registrants hereby amend this registration statement on such date or dates as may be
necessary to delay its effective date until the registration statement shall become effective as
provided in Rule 467 under the Securities Act of 1933 (the Securities Act) or on such date as
the Commission, acting pursuant to Section 8(a) of the Act, may determine.
PART I
INFORMATION REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
I-1
The information in this short form base shelf prospectus is not complete and may be changed. We
may not sell these securities until the Registration Statement filed with the U.S. Securities and
Exchange Commission is effective. This short form base shelf prospectus constitutes a public
offering of these securities only in those jurisdictions where they may be lawfully offered for
sale and therein only by persons permitted to sell such securities.
Information has been incorporated by reference in this short form base shelf prospectus from
documents filed with securities commissions or similar authorities in Canada.
Copies of the
documents incorporated herein by reference may be obtained on request without charge from the
Corporate Secretary of Bell Canada at 1 Carrefour Alexander-Graham-Bell, Building A, 7
th
Floor, Verdun (Québec) H3E 3B3, 514-786-8424 and are also available electronically at
www.sedar.com
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Preliminary Short Form Base Shelf Prospectus
Bell Canada
$3,000,000,000
Debt Securities
(Unsecured)
Unconditionally guaranteed as to payment of principal,
interest and other payment obligations by BCE Inc.
Debt securities consisting of debentures, notes and/or other unsecured evidences of
indebtedness or other instruments (collectively, the
Debt Securities
and each, individually, a
Debt Security
) of Bell Canada (the
Corporation
or
Bell Canada
) may be offered hereunder from
time to time in one or more series or issues in an aggregate amount of up to $3,000,000,000 (or the
equivalent thereof in other currencies based on the applicable exchange rate at the time of the
offering) calculated on the basis of the principal amount of the Debt Securities issued by Bell
Canada, in the case of interest bearing Debt Securities, or on the basis of the gross proceeds
received by Bell Canada, in the case of non-interest bearing Debt Securities, during the 25-month
period that this short form base shelf prospectus (the
Prospectus
), including any amendments
hereto, remains valid. The Debt Securities will either be Debt Securities that will rank
pari
passu
, except as to sinking funds, if any, with all other unsecured and unsubordinated indebtedness
of Bell Canada or Debt Securities that will be subordinated in right of payment to the prior
payment in full of all Senior Debt (as defined herein) of Bell Canada. Payment of principal,
interest and other payment obligations under the Debt Securities will be fully and unconditionally
guaranteed by BCE Inc. (
BCE
or the
Guarantor
). The obligations of the Guarantor under such
guarantee will constitute direct unsecured obligations of the Guarantor and will either rank
pari
passu
with all other unsecured and unsubordinated obligations of the Guarantor or be subordinated
in right of payment to the prior payment in full of all Senior Guaranteed Obligations (as defined
herein) of the Guarantor.
The Debt Securities may be offered in an amount and on such terms as may be determined from time to
time depending on market conditions and other factors. The specific variable terms of any offering
of Debt Securities (including, where applicable and without limitation, the specific designation,
the aggregate principal amount being offered, the currency, the issue and delivery date, the
maturity date, the issue price (or the manner of determination
thereof if offered on a non-fixed price basis), the interest rate (either fixed or floating and, if
floating, the manner of calculation thereof), the interest payment date(s), the redemption,
repayments, exchange or conversion provisions (if any), the repayment terms, the method of
distribution, the form (either global or definitive), the authorized
denominations and any other
terms in connection with the offering and sale of the Debt Securities) will be set forth in one or
more prospectus supplements or pricing supplements (collectively or individually, as the case may
be, a
Prospectus Supplement
) which will accompany this Prospectus. A Prospectus Supplement may
include specific variable terms pertaining to the Debt Securities that are not within the
alternatives and parameters described in this Prospectus.
All shelf information permitted under applicable laws to be omitted from this Prospectus will be
contained in one or more Prospectus Supplements that will be delivered to purchasers together with
this Prospectus. Each Prospectus Supplement will be incorporated by reference into this Prospectus
for the purposes of securities legislation as of the date of the Prospectus Supplement and only for
the purposes of the distribution of the Debt Securities to which the Prospectus Supplement
pertains.
Bell Canada may sell the Debt Securities to or through underwriters or dealers purchasing as
principals and may also sell the Debt Securities to one or more purchasers directly or through
agents. The Prospectus Supplement relating to a particular series or issue of Debt Securities will
identify each underwriter, dealer or agent engaged by Bell Canada, as the case may be, in
connection with the offering and sale of that series or issue, and will set forth the terms of the
offering of such series or issue, the method of distribution of such series or issue, including, to
the extent applicable, the proceeds to Bell Canada and any fees, discounts or any other
compensation payable to underwriters, dealers or agents and any other material terms of the plan of
distribution. See Plan of Distribution.
Unless otherwise specified in an applicable Prospectus Supplement, the Debt Securities will not be
listed on any securities exchange.
There is currently no market through which the Debt Securities
may be sold and purchasers may not be able to resell the Debt Securities purchased under this
Prospectus. This may affect the pricing of these Debt Securities in the secondary market, the
transparency and availability of trading prices, the liquidity of the Debt Securities, and the
extent of issuer regulation. See the Risk Factors section of the applicable Prospectus
Supplement.
Bell Canadas head and registered office is located at 1050, côte du Beaver Hall, Suite 1900,
Montréal (Québec) H2Z 1S4 and its principal executive offices are located at 1 Carrefour
Alexander-Graham-Bell, Building A, 8
th
Floor, Verdun (Québec) H3E 3B3.
Unless otherwise specifically stated, all dollar amounts in this short form prospectus are
expressed in Canadian dollars.
We are permitted, under a multijurisdictional disclosure system adopted by the United States, to
prepare this Prospectus in accordance with Canadian disclosure requirements, which are different
from those of the United States. We prepare our financial statements in accordance with Canadian
generally accepted accounting practices, and they may be subject to Canadian auditing and auditor
independence standards. They may not be comparable to financial statements of United States
companies.
Owning the Debt Securities may subject you to tax consequences both in the United States and
Canada. This Prospectus or any applicable Prospectus Supplement may not describe these tax
consequences fully. You should read the tax discussion in any applicable Prospectus Supplement.
Your ability to enforce civil liabilities under the United States federal securities laws may be
affected adversely because we are incorporated in Canada, some of our officers and directors and
some of the experts named in this Prospectus are Canadian residents, and a substantial portion of
our assets is located in Canada.
Neither the U.S. Securities and Exchange Commission (the SEC) nor any state securities regulator
has approved or disapproved the Debt Securities, or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
TABLE OF CONTENTS
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2
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2
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5
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6
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7
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7
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7
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8
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13
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14
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15
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16
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16
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16
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16
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16
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17
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WHERE YOU CAN FIND MORE INFORMATION
In addition to its continuous disclosure obligations under the securities laws of the
provinces of Canada, BCE is subject to the information requirements of the United States Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and other information
with the SEC. Under the multijurisdictional disclosure system adopted by the United States, such
reports and other information may be prepared in accordance with the disclosure requirements of
Canada, which requirements are different from those of the United States. Such reports and other
information, when filed by BCE in accordance with such requirements, can be inspected and copied at
the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. The
public may obtain information on the operations of the Public Reference Room by calling the SEC at
1-800-SEC-0330. The SEC maintains an Internet site that contains reports and other information
regarding issuers that file electronically with the SEC. The address of that site is
http://www.sec.gov.
Bell Canada and BCE have filed with the SEC a Registration Statement on Form F-9 (the
Registration Statement
) under the United States Securities Act of 1933, as amended, with respect
to the Debt Securities and of which this Prospectus is a part. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC. Reference is made to the Registration
Statement and the exhibits thereto for further information with respect to Bell Canada and BCE and
the Debt Securities.
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference into this Prospectus from documents filed with
securities commissions or similar authorities in Canada and filed with or furnished to the SEC.
Copies of the documents incorporated herein by reference may be obtained on request without charge
from the Corporate Secretary of the Corporation at the address set forth on the cover page of this
Prospectus, and are also available electronically at
www.sedar.com.
The following documents, filed by Bell Canada or BCE, as the case may be, with securities
commissions or similar authorities in each of the provinces of Canada, as amended from time to time
and filed with or furnished to the SEC, are specifically incorporated by reference into, and form
an integral part of, this Prospectus:
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(a)
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Bell Canadas unaudited Selected Summary Financial Information for the periods
ended December 31, 2010 and 2009 dated March 15, 2011;
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(b)
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BCEs audited Consolidated Financial Statements for the year ended December 31,
2010, and the Report of Independent Registered Chartered Accountants thereon (the
BCE
2010 Financial Statements
) and the Report of Independent Registered Chartered
Accountants on BCEs internal control over financial reporting, provided on pages 89 to
130 of the BCE Inc. 2010 Annual Report (the
BCE 2010 Annual Report
);
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(c)
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BCEs Managements Discussion and Analysis for the year ended December 31, 2010
(the
BCE 2010 MD&A
) provided on pages 22 to 87 and on page 131 of the BCE 2010 Annual
Report;
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(d)
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BCEs Annual Information Form dated March 10, 2011 for the year ended December
31, 2010;
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(e)
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BCEs Management Proxy Circular dated March 10, 2011 in connection with the
annual general meeting of the shareholders of BCE held on May 12, 2011;
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(f)
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Bell Canadas unaudited Selected Summary Financial Information for the
three-month periods ended March 31, 2011 and 2010 dated May 12, 2011;
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(g)
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BCEs unaudited interim consolidated financial statements for the three-month
periods ended March 31, 2011 and 2010 provided on pages 27 to 55 of the BCE 2011 First
Quarter Shareholder Report (the
BCE 2011 First Quarter Shareholder Report
);
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(h)
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BCEs Managements Discussion and Analysis for the three-month period ended
March 31, 2011 (the
BCE 2011 First Quarter MD&A
) provided on pages 2 to 26 of the BCE
2011 First Quarter Shareholder Report;
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(i)
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Bell Canadas unaudited Selected Summary Financial Information for the
three-month and six-month periods ended June 30, 2011 and 2010 dated August 4, 2011;
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(j)
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BCEs unaudited interim consolidated financial statements for the three-month
and six-month periods ended June 30, 2011 and 2010 provided on pages 28 to 43
of the BCE 2011 Second Quarter Shareholder Report (the
BCE 2011 Second Quarter
Shareholder Report
);
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(k)
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BCEs Managements Discussion and Analysis for the three-month and six-month
periods ended June 30, 2011 (the
BCE 2011 Second Quarter MD&A
) provided on pages
2 to 27 of the BCE 2011 Second Quarter Shareholder Report;
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(l)
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BCEs material change report dated April 1, 2011 with respect to its
acquisition of the remaining 85% interest in Bell Media Inc. (formerly CTVglobemedia
Inc.) (
Bell Media
) that it did not already own;
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(m)
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any and all Prospectus Supplements in respect of this Prospectus as of the date
of each such Prospectus Supplement; and
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(n)
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to the extent permitted by applicable securities law, any other documents which
Bell Canada elects to incorporate by reference into this Prospectus.
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Any statement contained in this Prospectus or in a document incorporated or deemed to be
incorporated by reference herein will be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in any other subsequently
filed document which also is, or is deemed to be, incorporated by reference into this Prospectus
modifies or supersedes that statement. The modifying or superseding statement need not state that
it has modified or superseded a prior statement or include any other information set forth in the
document that it modifies or supersedes. The making of a modifying or superseding statement shall
not be deemed an admission for any purposes that the modified or superseded statement when made,
constituted a misrepresentation, an untrue statement of a material fact or an omission to state a
material fact that is required to be stated or that is necessary to prevent a statement that is
made from being false or misleading in the circumstances in which it was made. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
Any document of the type required by National Instrument 44-101
Short Form Prospectus
Distributions
to be incorporated by reference into a short form prospectus, including any annual
information forms, material change reports (except confidential material change reports), business
acquisition reports, interim financial statements, annual financial statements and the auditors
report thereon, managements discussion and analysis, exhibits to interim and annual consolidated
financial statements containing updated earnings coverage information and information circulars of
BCE filed by BCE with securities commissions or similar authorities in Canada after the date of
this Prospectus and prior to the completion or withdrawal of any offering hereunder shall be deemed
to be incorporated by reference into this Prospectus.
Any material change report (excluding any confidential material change report), Prospectus
Supplement in respect of this Prospectus and selected summary financial information filed by Bell
Canada with the various securities commissions or similar securities regulatory authorities in
Canada after the date of this Prospectus and prior to the completion or withdrawal of any offering
hereunder shall be deemed to be incorporated by reference into this Prospectus.
3
In addition, any such documents which are filed with or furnished to the SEC by us in our
periodic reports on Form 6-K or annual report on Form 40-F after the date of this Prospectus shall
be deemed to be incorporated by reference into this Prospectus and the Registration Statement of
which this Prospectus forms a part if and to the extent expressly provided in such report.
Pursuant to the exemption provided under Section 13.4 of National Instrument 51-102 -
Continuous Disclosure Obligations
, Bell Canada does not file with the securities commissions and
similar securities regulatory authorities in Canada separate continuous disclosure information
regarding Bell Canada except for: (a) the selected summary financial information referred to above,
and (b) a material change report for a material change in respect of the affairs of Bell Canada
that is not also a material change in the affairs of BCE.
Upon a new annual information form and the related annual audited consolidated financial
statements together with the auditors report thereon and managements discussion and analysis
related thereto being filed by BCE, and upon new selected summary financial information being filed
by Bell Canada, with the applicable securities regulatory authorities during the currency of this
Prospectus, the previous annual information form, the previous annual audited consolidated
financial statements and all interim financial statements, annual and quarterly managements
discussions and analyses, material change reports and selected summary financial information filed
by BCE or Bell Canada, as the case may be, prior to the commencement of BCEs financial year in
which the new annual information form was filed, no longer shall be deemed to be incorporated by
reference in this Prospectus for the purpose of future offers and sales of Debt Securities
hereunder.
A Prospectus Supplement containing the specific terms of an offering of Debt Securities,
updated disclosure of earnings coverage ratio, if applicable, and other information in relation to
the Debt Securities will be delivered to purchasers of such Debt Securities together with this
Prospectus and shall be deemed to be incorporated by reference into this Prospectus as of the date
of such Prospectus Supplement solely for the purposes of the offering of the Debt Securities
covered by that Prospectus Supplement.
4
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated herein by reference contain forward-looking
statements about Bell Canadas and BCEs objectives, plans, strategic priorities, financial
condition, results of operations, cash flows, business strategies, outlook and other statements
that are not historical facts. A statement we make is forward-looking when it uses what we know and
expect today to make a statement about the future. Forward-looking statements may include words
such as aim, anticipate, assumption, believe, could, expect, goal, guidance, intend, may,
objective, outlook, plan, seek, should, strategy, strive, target and will. All such forward-looking
statements are made pursuant to the safe harbour provisions of applicable Canadian securities
laws and of the United States Private Securities Litigation Reform Act of 1995.
Unless otherwise indicated, forward-looking statements contained in this Prospectus describe
Bell Canadas and BCEs expectations, as applicable, as at the date of this Prospectus and
forward-looking statements contained in the documents incorporated herein by reference describe
Bell Canadas and BCEs expectations, as applicable, as of the date of such documents, unless
otherwise indicated in such documents. Except as may be required by Canadian securities laws, we do
not undertake any obligation to update or revise any forward-looking statement, whether as a result
of new information, future events or otherwise.
Forward-looking statements, by their very nature, are subject to numerous risks and
uncertainties and are based on several assumptions which give rise to the possibility that actual
results could differ materially from expectations expressed in or implied by such forward-looking
statements and that Bell Canadas and BCEs objectives, strategies, plans, strategic priorities and
other statements that are not historical facts may not be achieved. As a result, we cannot
guarantee that any forward-looking statement will materialize and, accordingly, prospective
investors are cautioned not to place undue reliance on these forward-looking statements.
Forward-looking statements are provided in this Prospectus and in the documents incorporated by
reference for the purpose of giving information about managements current expectations and plans
and allowing investors and others to get a better understanding of our operating environment.
However, readers are cautioned that it may not be appropriate to use such forward-looking
statements for any other purpose.
Forward-looking statements made in this Prospectus and in the documents incorporated herein by
reference are based on a number of assumptions that BCE or Bell Canada, as applicable, believed
were reasonable on the day they made the forward-looking statements. Refer, in particular, to the
BCE 2010 MD&A under the heading Business Outlook and Assumptions on pages 33 to 35 of the BCE
2010 Annual Report, as updated in the BCE 2011 First Quarter MD&A under the heading Assumptions
and Risks that Could Affect Our Business and Results on pages 21 to 24 of the BCE 2011 First
Quarter Shareholder Report, as further updated in the BCE 2011 Second Quarter MD&A under the
heading Assumptions and Risks that Could Affect Our Business and Results on pages 22 to
24 of the BCE 2011 Second Quarter Shareholder Report, for a discussion of certain assumptions
that BCE or Bell Canada have made in making forward-looking statements.
Factors that could cause actual results or events to differ materially from those expressed in
or implied by the forward-looking statements contained in this Prospectus or the documents
incorporated by reference are disclosed in the BCE 2010 MD&A included in the BCE 2010 Annual Report
on pages 70 to 76 under the heading Risks that Could Affect Our Business and Results, on pages 60
to 63 under the heading Our Competitive Environment and on pages 63 to 69 under the heading Our
Regulatory Environment, as updated in the BCE 2011 First Quarter MD&A under the headings Updates
to Our Regulatory Environment and Assumptions and Risks that Could Affect Our Business and
Results on pages 17 to 20, and 21 to 24, respectively, of the BCE 2011 First Quarter Shareholder
Report, as further updated in the BCE 2011 Second Quarter MD&A under the headings Updates to Our
Regulatory Environment and Assumptions and Risks that Could Affect Our Business and Results on
pages 20 to 22, and 22 to 24, respectively, of the BCE 2011 Second Quarter
Shareholder Report.
Readers are cautioned that the risks referred to above are not the only ones that could impact
BCE and Bell Canada. Additional risks and uncertainties not currently known to BCE or Bell Canada
or that BCE or Bell Canada currently deem to be immaterial may also have a material adverse effect
on BCE or Bell Canadas business, financial condition or results of operations.
5
Except as otherwise indicated, forward-looking statements do not reflect the potential impact
of any non-recurring or other unusual items or of any dispositions, monetizations, mergers,
acquisitions, other business combinations or other transactions that may be announced or that may
occur after the date of such statements. The financial impact of these transactions and
non-recurring and other unusual items can be complex and depends on the facts particular to each of
them. We therefore cannot describe the expected impact in a meaningful way or in the same way we
present known risks affecting our business.
INTERCORPORATE RELATIONSHIPS
Bell Canada was incorporated by special act of the Parliament of Canada in 1880 and continued
under the
Canada Business Corporations Act
(the
CBCA
) effective April 21, 1982. Bell Canada is
also legally designated The Bell Telephone Company of Canada or La Compagnie de Téléphone Bell
du Canada and its head and registered office is located at 1050, côte du Beaver Hall, Suite 1900,
Montréal (Québec) H2Z 1S4 and its principal executive offices at 1 Carrefour Alexander-Graham-Bell,
Building A, 8
th
Floor, Verdun (Québec) H3E 3B3.
BCE was incorporated in 1970 and was continued under the CBCA in 1979. It is governed by a
certificate and articles of amalgamation dated August 1, 2004, by a certificate and articles of
arrangement dated July 10, 2006, by a certificate and articles of amendment dated January 25, 2007
and by a certificate and articles of amendment dated June 29, 2011. BCEs head and registered
office and principal executive offices are at 1 Carrefour Alexander-Graham-Bell, Building A,
8
th
Floor, Verdun (Québec) H3E 3B3.
The table below shows BCEs main subsidiaries, where they are incorporated or registered, and
the percentage of voting and non-voting securities that BCE beneficially owns or directly or
indirectly exercises control or direction over. BCE has other subsidiaries, but they have not been
included in the table because each represents 10% or less of its total consolidated assets and 10%
or less of its total consolidated operating revenues. These other subsidiaries together represented
20% or less of its total consolidated assets and 20% or less of its total consolidated operating
revenues at June 30, 2011.
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SUBSIDIARY
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WHERE IT IS INCORPORATED
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PERCENTAGE OF VOTING SECURITIES
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|
|
|
OR REGISTERED
|
|
|
THAT
|
|
|
|
|
|
|
|
BCE INC. HELD AT JUNE 30, 2011
(1)
|
|
|
Bell Canada
|
|
Canada
|
|
|
100
|
%
|
Bell Mobility Inc. (
Bell Mobility
)
|
|
Canada
|
|
|
100
|
%
|
Bell ExpressVu Limited Partnership
|
|
Ontario
|
|
|
100
|
%
|
Bell Media
|
|
Canada
|
|
|
100
|
%
|
|
|
|
|
(1)
|
|
BCE does not own any outstanding non-voting securities issued by these subsidiaries.
|
As at June 30, 2011, BCE also directly and indirectly owned 100,376,270 common shares of
Bell Aliant Inc., representing 44.1% of the outstanding common shares of Bell Aliant Inc., with the
remaining interest publicly held. Furthermore, Bell Canada owns one voting common share of Bell
Aliant Regional Communications Inc., with the remaining shares being held by Bell Aliant Inc.
Pursuant to an Amended and Restated Securityholders Agreement dated January 1, 2011, entered
into among Bell Aliant Inc., Bell Aliant Regional Communications, Limited Partnership, Bell Aliant
Regional Communications Inc., 6583458 Canada Inc., BCE and Bell Canada, BCE has, among others, the
following rights with respect to Bell Aliant Inc.:
|
|
For so long as BCE owns a 30% or greater interest in Bell Aliant Inc., and
provided that certain major commercial agreements are in place, BCE has the right to appoint a
majority of the directors of Bell Aliant Regional Communications Inc. and to direct Bell
Aliant Inc. with respect to the nomination of up to a majority of the directors of Bell Aliant
Inc.
|
6
|
|
For so long as BCE owns a 20% or greater interest in Bell Aliant Inc., BCE also
has the ability to veto certain actions of Bell Aliant Inc. and its subsidiaries (such as
certain material business plans and corporate transactions, material changes in business,
leverage in excess of 2.5 times debt to earnings before interest, taxes, depreciation and
amortization, the appointment and change of the chief executive officer and entering into
material commercial agreements with our competitors).
|
BUSINESS OF THE CORPORATION
Bell Canada is Canadas largest communications company, providing consumers and business with
solutions to all their communications needs, including Bell Mobility wireless, high-speed Bell
Internet, Bell Satellite TV and Bell Fibe TV, Bell Home Phone local and long distance, and Bell
Business Markets IP-broadband and information and communications technology (ICT) services. Bell
Media is Canadas premier multimedia company with leading assets in television, radio and digital
media, including CTV, Canadas #1 television network.
Additional information about Bell Canadas business is included in the documents incorporated
by reference into this Prospectus.
CONSOLIDATED CAPITALIZATION
The following table sets forth the consolidated capitalization of BCE on an actual basis based
on its unaudited consolidated financial statements as at June 30, 2011 and on a pro forma basis as
adjusted to reflect the issuance on July 5, 2011 of $345 million of Cumulative Redeemable First
Preferred Shares, Series AK of the Corporation (the
Series AK Preferred Shares
):
|
|
|
|
|
|
|
|
|
|
|
As at
|
|
|
|
June 30, 2011
|
|
|
|
($ millions)
|
|
|
|
(unaudited)
|
|
|
|
Actual
|
|
|
As Adjusted
|
|
Debt due within one year
|
|
$
|
2,239
|
|
|
$
|
2,239
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
$
|
12,699
|
|
|
$
|
12,699
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
$
|
14,938
|
|
|
$
|
14,938
|
|
|
|
|
|
|
|
|
|
|
Equity Preferred shares
|
|
$
|
2,770
|
|
|
$
|
3,115
|
|
Common shares
|
|
$
|
13,568
|
|
|
$
|
13,568
|
|
Contributed surplus
|
|
$
|
2,531
|
|
|
$
|
2,531
|
|
Accumulated other comprehensive loss
|
|
$
|
(43
|
)
|
|
$
|
(43
|
)
|
Deficit
|
|
$
|
(4,988
|
)
|
|
$
|
(5,100
|
)
|
Non-controlling interest
|
|
$
|
907
|
|
|
$
|
897
|
|
As at June 30, 2011, the consolidated long-term debt of Bell Canada was $15,702 million.
Included in this amount is debt of $815 million due to a related party, BCE, at June 30, 2011.
There has been no material change in the share and loan capital of Bell Canada since June 30, 2011.
USE OF PROCEEDS
The use of proceeds from the sale of any Debt Securities will be described in a Prospectus
Supplement relating to the specific issuance of Debt Securities. Bell Canada may use proceeds from
the sale of Debt Securities hereunder for repayment of indebtedness, to fund capital expenditures
and for other general corporate purposes.
7
DESCRIPTION OF THE DEBT SECURITIES
General
The terms and conditions set forth in this Description of the Debt Securities section will
apply to each Debt Security unless otherwise specified in a Prospectus Supplement.
The Debt Securities are issuable, in one or more series or issues, from time to time at the
discretion of Bell Canada, at prices and on terms determined at the time of issue in an aggregate
amount not to exceed $3,000,000,000 (or the equivalent thereof in other currencies based on the
applicable exchange rate at the time of the offering) calculated on the basis of the principal
amount of the Debt Securities issued by Bell Canada, in the case of interest bearing Debt
Securities, or on the basis of the gross proceeds received by Bell Canada, in the case of
non-interest bearing Debt Securities, during the 25-month period that this Prospectus, including
any amendments hereto, remains valid. The Debt Securities will have maturities of not less than one
year from the date of issue and can be issued at par, at a discount or at a premium.
The Debt Securities may be offered in an amount and on such terms as may be determined from
time to time depending on market conditions and other factors. The specific variable terms of any
offering of Debt Securities (including, where applicable and without limitation, the specific
designation, the aggregate principal amount being offered, the currency, the issue and delivery
date, the maturity date, the issue price (or the manner of determination thereof if offered on a
non-fixed price basis), the interest rate (either fixed or floating and, if floating, the manner of
calculation thereof), the interest payment date(s), the redemption, repayment, exchange or
conversion provisions (if any), the repayment terms, the name and compensation of the agents,
underwriters or dealers acting as principals, the method of distribution, the form (either global
or definitive), the authorized denominations and any other terms in connection with the offering
and sale of the Debt Securities), as well as any modifications of or additions to the general terms
of the Debt Securities described herein which may be applicable to a particular offering of Debt
Securities, will be set forth in a Prospectus Supplement. Bell Canada also reserves the right to
include in a Prospectus Supplement specific variable terms pertaining to the Debt Securities which
are not within the options and parameters set forth in this Prospectus. Reference is made to the
applicable Prospectus Supplement for a description of the specific variable terms of any offering
of Debt Securities. Bell Canada may also, from time to time, issue debt securities and incur
additional indebtedness otherwise than through the issue of Debt Securities offered pursuant to
this Prospectus.
The Debt Securities which may be offered hereunder will consist of:
|
(i)
|
|
unsubordinated Debt Securities that will rank
pari passu
with all other
unsecured and unsubordinated indebtedness of Bell Canada. Such unsubordinated Debt
Securities may be issued under an indenture dated as of November 28, 1997 and
indentures supplemental thereto executed by Bell Canada in favour of CIBC Mellon Trust
Company, as trustee (the
MTN Indenture
). Debt Securities issued under the MTN
Indenture are hereinafter referred to as the
MTN Debentures
; or
|
|
|
(ii)
|
|
subordinated Debt Securities which are subordinated in right of payment to the
prior payment in full of all Senior Debt (as defined hereinafter). Such subordinated
Debt Securities will be issued under an indenture dated as of April 17, 1996 and
indentures supplemental thereto executed by Bell Canada in favour of Montreal Trust
Company (the predecessor company of Computershare Trust Company of Canada), as trustee
(the
Subordinated Indenture
). Debt Securities issued under the Subordinated Indenture
are hereinafter referred to as the
Subordinated Debentures
.
|
Unsubordinated Debt Securities may also be issued under a distinct trust indenture or without
the benefit of a trust indenture. The terms and conditions applicable to unsubordinated Debt
Securities issued under a distinct trust indenture or without the benefit of a trust indenture will
be set forth in such trust indenture or in the specific Debt Security, as the case may be, and
summarized in the applicable Prospectus Supplement. Such terms and conditions may vary from those
which apply to MTN Debentures.
8
Notwithstanding the foregoing, only MTN Debentures and Subordinated Debentures may be offered
or sold in the United States.
The MTN Indenture and the Subordinated Indenture are sometimes referred to herein individually
as an
Indenture
and collectively as the
Indentures
. CIBC Mellon Trust Company and Computershare
Trust Company of Canada are each sometimes referred to herein as the Trustee.
The following summaries of certain provisions of the Indentures and the MTN Debentures and
Subordinated Debentures do not purport to be complete in every detail, and are subject to and
qualified in their entirety by the detailed provisions of the Indentures. Reference should be made
to the Indentures for a full description of such provisions, including the definition of certain
terms used herein, and for other information regarding the MTN Debentures and Subordinated
Debentures.
The Indentures
The following paragraphs summarize certain provisions of the MTN Indenture and the
Subordinated Indenture which are substantially similar.
Form and Denominations
The MTN Debentures or Subordinated Debentures of any series or issue may be issued in the form
of fully-registered definitive securities (the
Definitive Securities
) in denominations of $1,000
and integral multiples thereof or in such other forms and denominations as may be provided for by
the terms of the MTN Debentures or Subordinated Debentures of any particular series or issue and
set forth in the applicable Prospectus Supplement. The Indentures also provide that MTN Debentures
or Subordinated Debentures of any series or issue may be issued in the form of one or more
fully-registered global securities (the
Global Securities
), or in any combination of Definitive
Securities and Global Securities.
Open Market Purchases
Bell Canada will have the right at any time and from time to time to purchase MTN Debentures
or Subordinated Debentures in the market, by tender or by private contract at any price.
Modification
The rights of the holders of MTN Debentures or Subordinated Debentures under the Indentures
may in certain circumstances be modified. For that purpose, among others, the Indentures contain
provisions making extraordinary resolutions binding upon all holders of MTN Debentures or
Subordinated Debentures issued thereunder.
Extraordinary resolution
is defined, in effect, as a
resolution passed at a meeting of such holders by the affirmative votes of the holders of at least
66 2/3% of the principal amount of MTN Debentures or Subordinated Debentures, as the case
may be, voted on the resolution at a meeting of holders at which a quorum, as specified in the
Indentures, is present or as one or more instruments in writing signed by the holders of at least
66 2/3% in principal amount of all outstanding MTN Debentures or Subordinated Debentures,
as the case may be. In certain cases, modifications may require separate extraordinary resolutions
of the holders of a specific series of MTN Debentures or Subordinated Debentures outstanding under
the Indentures.
Certain changes can be made only with the consent of each holder of an outstanding series of
MTN Debentures or Subordinated Debentures. In particular, each holder must consent to changes in
the right of a holder of MTN Debentures or of Subordinated Debentures to receive payment of the
principal of and interest on such MTN Debentures or Subordinated Debentures, on or after the
respective due dates expressed in such MTN Debentures or Subordinated Debentures, or to institute
suit for the enforcement of any such payment on or after such respective dates.
9
Payment of Principal and Interest
Bell Canada will pay the principal of and premium, if any, and interest, if any, on the MTN
Debentures or Subordinated Debentures at the dates and places, in the currencies and in the manner
described in the MTN Debentures or Subordinated Debentures and in the Indentures. Unless otherwise
provided in the terms of the MTN Debentures or Subordinated Debentures of any series or issue and
set forth in the applicable Prospectus Supplement, payment of interest, if any, on each MTN
Debenture or Subordinated Debenture will be made by electronic funds transfer or by cheque mailed
to the address of the holder of each MTN Debenture or Subordinated Debenture appearing on the
registers maintained by the Trustee.
Payments made in respect of MTN Debentures or Subordinated Debentures represented by Global
Securities registered in the name of a depository or its nominee will be made to such depository or
its nominee, as the case may be, as the registered holder of such Global Securities.
Payments of principal of and premium, if any, on MTN Debentures or Subordinated Debentures
will be made against presentation and surrender thereof for cancellation at such places as are
designated in the MTN Debentures or Subordinated Debentures.
Right of Trustee to Enforce Payment
If Bell Canada fails to pay to the Trustee on demand, following a declaration made by the
Trustee as described below under Events of Default, the principal of and premium, if any, and
interest, if any, on MTN Debentures or Subordinated Debentures, as the case may be, then issued and
outstanding under the applicable Indenture, the Trustee may, in its discretion, and shall upon the
request in writing of the holders of not less than 25% of the principal amount of MTN Debentures or
Subordinated Debentures, as the case may be, issued and outstanding under the applicable Indenture,
and upon being indemnified to its reasonable satisfaction against all costs, expenses and
liabilities to be incurred, proceed in its name as Trustee to obtain or enforce payment of the said
principal and premium, if any, and interest, if any, on all outstanding MTN Debentures or
Subordinated Debentures, as the case may be, under the applicable Indenture, together with other
amounts due under such Indenture, by any remedy or proceeding authorized by the Indenture.
Holders of MTN Debentures or Subordinated Debentures issued under the Indentures may not
institute any action or proceeding or exercise any other remedy authorized by the Indentures,
including an action to enforce the Indentures or the MTN Debentures or Subordinated Debentures,
except as provided in the Indentures. Notwithstanding the foregoing, any holder of MTN Debentures
or of Subordinated Debentures may institute suit for the enforcement of any payment of principal or
interest on or after the respective due dates expressed in such MTN Debentures or Subordinated
Debentures.
Guarantee
The Guarantor has irrevocably and unconditionally guaranteed the full and timely payment when
due, whether at stated maturity, by required payment, acceleration, declaration, demand or
otherwise, of all of the payment obligations of Bell Canada under the Indentures existing at the
time the Guarantor entered into such guarantee and, unless otherwise provided in a supplemental
trust indenture, incurred thereafter (the
Guarantee
). Such Guarantee therefore includes all of
the payment obligations of Bell Canada under the Debt Securities in accordance with the terms of
such Debt Securities and of the Indentures. The Guarantor has agreed that its obligations under the
Guarantee shall be irrevocable and unconditional, irrespective of, shall not be affected or limited
by, and shall not be subject to any defense, set-off, counterclaim or termination by reason of: (i)
the legality, genuineness, validity, regularity or enforceability of the Guarantee or the
liabilities of Bell Canada guaranteed thereby; (ii) any provision of applicable law or regulation
prohibiting the payment by Bell Canada of the Debt Securities; or (iii) any other fact or
circumstance which might otherwise constitute a defense to a guarantee. The Guarantor has no right
of subrogation, reimbursement or indemnity whatsoever against Bell Canada, nor any right of
recourse to security for its obligations under the Guarantee, unless and until all Debt Securities
have been finally and irrevocably paid in full. The obligations of the Guarantor under the
Indentures and the Guarantee shall be continuing obligations. The liability of the Guarantor shall
be discharged or satisfied only upon full payment and performance by either Bell Canada or the
Guarantor of all the payment obligations of Bell Canada under the Debt Securities.
10
Governing Law
The Indentures are governed by the laws of the Province of Québec and the laws of Canada
applicable therein.
MTN Indenture
The following paragraphs summarize certain additional provisions of the MTN Indenture.
Covenants
The MTN Indenture contains covenants to the following effect:
(1)
|
|
Limitation on Liens
. Subject to the exception set forth in paragraph (2) below, Bell Canada
will not issue, assume or guarantee any Debt secured by, and will not after the date of the
MTN Indenture secure any Debt by, a Mortgage upon any property of Bell Canada (whether now
owned or hereafter acquired), without in any such case effectively providing concurrently
therewith that the MTN Debentures (together with any other Debt of Bell Canada which may then
be outstanding and entitled to the benefit of a covenant similar in effect to this covenant)
shall be secured equally and rateably with such Debt; provided, however, that the foregoing
restrictions shall not apply to Debt secured by:
|
|
(i)
|
|
Purchase Money Mortgages;
|
|
|
(ii)
|
|
Mortgages on property of a corporation existing at the time such corporation is
merged into or consolidated with Bell Canada or at the time of a sale, lease or other
disposition to Bell Canada of the properties of a corporation as an entirety or
substantially as an entirety;
|
|
|
(iii)
|
|
Mortgages on current assets of Bell Canada securing Current Debt of Bell
Canada; or
|
|
|
(iv)
|
|
any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Mortgage referred to in the foregoing clauses
(i) or (ii) or any Mortgage existing at the date of the MTN Indenture, provided,
however, that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited to all or
a part of the property which secured the Mortgage so extended, renewed or replaced
(plus improvements on such property).
|
(2)
|
|
Additional Permitted Liens
. In addition to Mortgages permitted by paragraph (1) above, Bell
Canada may issue, assume or guarantee any Debt secured by, or secure after the date of the MTN
Indenture any Debt by, a Mortgage upon any property of Bell Canada (whether now owned or
hereafter acquired) if, after giving effect thereto, the aggregate principal amount of Debt
secured by Mortgages of Bell Canada permitted only by this paragraph (2) does not at such time
exceed 5% of the Net Worth of Bell Canada.
|
The terms
Current Debt
,
Debt
,
Mortgage
,
Net Worth of Bell Canada
and
Purchase Money
Mortgage
are defined in the MTN Indenture.
Events of Default
The MTN Indenture provides that any of the following constitutes an event of default: (i)
default in the payment of the principal of or premium, if any, on any MTN Debenture when the same
becomes due and payable and continuation of such default for a period of five days; (ii) default in
the payment of any installment of interest on any MTN Debenture when the same becomes due and
payable and continuation of such default for a period of 90 days; (iii) default in the payment of
any purchase or sinking fund installment on any MTN Debenture when the same shall become due and
payable and continuation of such default for a period of 30 days; (iv) default in the performance
or observance of any covenant, agreement or condition of the MTN Indenture and continuation of such
11
default for a period of 90 days after written notice has been given by the Trustee to Bell
Canada specifying such default and requiring Bell Canada to remedy the same or after written notice
by the holders of not less than 25% in principal amount of the MTN Debentures at the time
outstanding; (v) certain events of insolvency or bankruptcy and, in certain cases, continuation of
such events for a period of 60 days; and (vi) default, as defined in one or more instruments
evidencing indebtedness for borrowed money of Bell Canada, shall happen and be continuing in
relation to indebtedness in excess of 5% of the aggregate principal amount of all outstanding
indebtedness for borrowed money of Bell Canada, and (a) shall consist of a failure to make any
payment of principal at maturity or (b) shall have resulted in the acceleration of such
indebtedness so that the same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable.
If an event of default has occurred under the MTN Indenture and is continuing, the Trustee may
in its discretion and shall upon the request in writing of the holders of at least 25% of the
principal amount of the MTN Debentures issued and outstanding under the MTN Indenture, subject to
any waiver of default under the MTN Indenture, by notice in writing to Bell Canada declare the
principal and interest on all MTN Debentures then outstanding under the MTN Indenture and other
money payable thereunder to be due and payable.
Transfer Agent and Registrar
The register for the MTN Debentures will be kept at the principal office of BNY Trust Company
of Canada acting as administrative agent for CIBC Mellon Trust Company, in Montréal, and facilities
for registration, exchange and transfer of the MTN Debentures will be maintained at its offices in
Montréal, Québec, Toronto, Ontario, Vancouver, British Columbia and Calgary, Alberta.
Subordinated Indenture
The following paragraphs summarize certain additional provisions of the Subordinated
Indenture.
Subordination
The Subordinated Indenture provides that the indebtedness evidenced by the Subordinated
Debentures is subordinate in right of payment to the prior payment in full of all Senior Debt of
Bell Canada, whether outstanding on or created, incurred, assumed or guaranteed after the date of
the Subordinated Indenture.
Senior Debt
is defined, in effect, as the principal of, premium, if
any, interest on and all other amounts in respect of: (i) indebtedness, other than indebtedness
represented by the Subordinated Debentures, issued, assumed or guaranteed by Bell Canada for
borrowed money or for the deferred purchase price of property; (ii) all other liabilities of Bell
Canada; and (iii) renewals, extensions or refundings of any indebtedness referred to in the
foregoing clauses (i) and (ii), except, in each case, those which by their terms rank in right of
payment equally with or subordinate to the Subordinated Debentures.
In the event of the insolvency or winding-up of Bell Canada the holders of all Senior Debt are
entitled to receive payment in full before the holders of the Subordinated Debentures are entitled
to receive any payment. Notwithstanding the subordination provisions, Bell Canada may, except
during any such insolvency or winding-up proceedings, make payments of principal of, premium, if
any, and interest on the Subordinated Debentures.
Similarly, in the event of the insolvency or winding-up of Bell Canada, the indebtedness of
the Guarantor evidenced by the Guarantee of the Subordinated Debentures (the
Guaranteed
Obligations
) will be subordinated in right of payment to the prior payment in full of all Senior
Guaranteed Obligations (as defined below) of the Guarantor, whether such Senior Guaranteed
Obligations were outstanding on the date on which the Guarantor entered into the Guarantee or were
thereafter granted, incurred, or assumed by the Guarantor.
Senior Guaranteed Obligations
means
any and all payment obligations of the Guarantor arising from a guarantee of Bell Canadas payment
obligations (but excluding the Guaranteed Obligations or any other guarantee of Bell Canadas
payment obligations by the Guarantor which by its terms ranks in right of payment equally with or
subordinated to the Guaranteed Obligations) whether such guarantee is outstanding on the date
hereof or hereafter granted, incurred, or assumed by the Guarantor, and, for greater certainty
includes the Guarantors payment obligations under: (i) the indenture dated as of July 1, 1976 and
indentures supplemental thereto executed by Bell Canada in favour of The
12
Royal Trust Company (the predecessor company of CIBC Mellon Trust Company), as trustee, and
indentures supplemental thereto executed by Bell Canada in favour of CIBC Mellon Trust Company, as
trustee, and (ii) the MTN Indenture.
As a result of these subordination provisions, in the event of Bell Canadas insolvency,
holders of Subordinated Debentures may recover less than general creditors of Bell Canada.
Events of Default
The Subordinated Indenture provides that any of the following constitutes an event of default:
(i) default in the payment of the principal of or premium, if any, on any Subordinated Debenture
when the same becomes due and payable; (ii) default in the payment of any installment of interest
on any Subordinated Debenture when the same becomes due and payable and continuation of such
default for a period of 90 days; (iii) default in the payment of any purchase or sinking fund
installment on any Subordinated Debenture when the same shall become due and payable and
continuation of such default for a period of 30 days; (iv) default in the performance or observance
of any covenant, agreement or condition of the Subordinated Indenture and continuation of such
default for a period of 90 days after written notice has been given by the Trustee to Bell Canada
specifying such default and requiring Bell Canada to remedy the same or after written notice by the
holders of not less than 25% in principal amount of the Subordinated Debentures at the time
outstanding; and (v) certain events of insolvency or bankruptcy and, in certain cases, continuation
of such events for a period of 60 days.
If an event of default has occurred under the Subordinated Indenture and is continuing, the
Trustee may in its discretion and shall upon the request in writing of the holders of at least 25%
of the principal amount of the Subordinated Debentures issued and outstanding under the
Subordinated Indenture, subject to any waiver of default under the Subordinated Indenture, by
notice in writing to Bell Canada declare the principal and interest on all Subordinated Debentures
then outstanding under the Subordinated Indenture and other money payable thereunder to be due and
payable.
Transfer Agent and Registrar
The register for the Subordinated Debentures will be kept at the principal office of BNY Trust
Company of Canada acting as administrative agent for CIBC Mellon Trust Company, in Montréal, and
facilities for registration, exchange and transfer of the Subordinated Debentures will be
maintained at its offices in Montréal, Québec, Toronto, Ontario, Vancouver, British Columbia and
Calgary, Alberta.
EARNINGS COVERAGE RATIOS
BCE adopted International Financial Reporting Standards (
IFRS
) effective for interim and
annual periods commencing January 1, 2011. Financial results under IFRS for 2010 and 2011 are
unaudited. Prior to the adoption of IFRS, BCE prepared its consolidated financial statements using
previous Canadian generally accepted accounting principles (
Previous Canadian GAAP
).
The following earnings coverage ratios are calculated for the 12 months ended December 31,
2010 under both Previous Canadian GAAP and IFRS and for the 12 months ended June 30, 2011 under
IFRS and give effect to the issuance and redemption of all long-term debt since January 1, 2010, as
if these transactions occurred on January 1, 2010 and July 1, 2010, respectively. These earnings
coverage ratios do not give effect to the proposed issue of any Debt Securities pursuant to this
Prospectus and any Prospectus Supplement, since the aggregate principal amounts and the terms of
such securities are not presently known.
Previous Canadian GAAP
The following information was computed under Previous Canadian GAAP. After giving effect to
the above transactions, BCEs interest on debt requirements amounted to $829 million for the 12
months ended December 31, 2010. BCEs net earnings applicable to common shares before interest
expense and income tax for the 12 months then ended was $3,385 million, which is 4.1 times BCEs
interest on debt requirements for this period.
13
The earnings coverage ratio set out above does not purport to be indicative of an earnings
coverage ratio for any future period.
IFRS
The following information was computed under IFRS. After giving effect to the above
transactions, BCEs interest on debt requirements amounted to $846 million for the 12 months ended
December 31, 2010 and to $871 million for the 12 months ended June 30, 2011. BCEs net earnings
attributable to common shareholders before interest expense and income tax was $3,770 million for
the 12 months ended December 31, 2010, which is 4.5 times BCEs interest on debt requirements for
that period and $3,460 million for the 12 months ended June 30, 2011, which is 4.0 times BCEs
interest on debt requirements for that period.
The earnings coverage ratios set out above do not purport to be indicative of an earnings
coverage ratio for any future period.
If Bell Canada offers any Debt Securities having a term to maturity in excess of one year
under this Prospectus or a Prospectus Supplement, the Prospectus Supplement will include earnings
coverage ratios giving effect to the issuance of such Debt Securities.
PLAN OF DISTRIBUTION
Bell Canada may offer and sell the Debt Securities to or through underwriters or dealers
purchasing as principals, and it may also sell the Debt Securities to one or more purchasers
directly or through agents. Debt Securities may be sold from time to time in one or more
transactions at a fixed price or prices, or at non-fixed prices.
If offered on a non-fixed price basis, the Debt Securities may be offered at prevailing market
prices at the time of sale or at prices to be negotiated with purchasers. The prices at which the
Debt Securities may be offered may vary as between purchasers and during the period of
distribution. Consequently, any dealers overall compensation will increase or decrease by the
amount by which the aggregate price paid for the Debt Securities by the purchasers exceeds or is
less than the gross proceeds paid by the dealers, acting as principals, to Bell Canada.
If, in connection with the offering of Debt Securities at a fixed price or prices, the
underwriters have made a
bona fide
effort to sell all of the Debt Securities at the initial
offering price fixed in the applicable Prospectus Supplement, the public offering price may be
decreased and thereafter further changed, from time to time, to an amount not greater than the
initial public offering price fixed in such Prospectus Supplement, in which case the compensation
realized by the underwriters will be decreased by the amount that the aggregate price paid by
purchasers for the Debt Securities is less than the gross proceeds paid by the underwriters to Bell
Canada.
A Prospectus Supplement will identify each underwriter, dealer or agent engaged by Bell
Canada, as the case may be, in connection with the offering and sale of a particular series or
issue of Debt Securities, and will also set forth the terms of the offering, including the public
offering price (or the manner of determination thereof, if offered on a non-fixed price basis), the
proceeds to Bell Canada and any compensation payable to the underwriters, dealers or agents.
Under agreements which may be entered into by Bell Canada, underwriters, dealers and agents
who participate in the distribution of the Debt Securities may be entitled to indemnification by
Bell Canada against certain liabilities, including liabilities arising out of any misrepresentation
in this Prospectus and the documents incorporated by reference herein, other than liabilities
arising out of any misrepresentation made by underwriters, dealers or agents who participate in the
offering of the Debt Securities.
Each series or issue of Debt Securities will be a new issue of securities with no established
trading market. In accordance with rules and policy statements of certain Canadian securities
regulators, the underwriters, dealers or agents, as the case may be, may not, throughout the period
of distribution of a series of Debt Securities, bid for or purchase such series of Debt Securities.
The foregoing restriction is subject to exceptions, on the condition that the bid or purchase is
not engaged in for the purpose of creating actual or apparent active trading in, or raising prices
of, such series of Debt Securities. These exceptions include a bid or purchase permitted under the
Universal Market Integrity Rules of the Investment Industry Regulatory Organization of Canada
relating to market stabilization and
14
passive market-making activities and a bid or purchase made for and on behalf of a customer
where the order was not solicited during the period of distribution. Subject to the foregoing and
applicable laws, in connection with the offering, and subject to the first exception mentioned
above, the underwriters, dealers or agents, as the case may be, may engage in over-allotment and
stabilizing transactions and purchases to cover short positions created by the underwriters,
dealers or agents, as the case may be, in connection with the offering. Stabilizing transactions
consist of certain bids or purchases for the purpose of preventing or retarding a decline in the
market price of a particular series of Debt Securities and short positions created by the
underwriters, dealers or agents, as the case may be, involving the sale by the underwriters,
dealers or agents, as the case may be, of a greater number of Debt Securities of such series than
may be offered by Bell Canada in the offering. These activities may stabilize, maintain or
otherwise affect the market price of the Debt Securities, which may be higher than the price that
might otherwise prevail in the open market; these activities, if commenced, may be discontinued at
any time. These transactions may be effected in the over-the-counter market or otherwise.
Any underwriters, dealers or agents to or through whom Debt Securities are sold by Bell Canada
for public offering and sale may make a market in the Debt Securities, but such underwriters,
dealers or agents will not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given that a trading market in the Debt Securities of any
series or issue will develop or as to the liquidity of any trading market for the Debt Securities.
RISK FACTORS
An investment in the Debt Securities involves risks. Prospective investors in the Debt
Securities should carefully consider the information contained in, or incorporated by reference in,
this Prospectus, including, without limitation, the risk factors disclosed in the BCE 2010 MD&A
included in the BCE 2010 Annual Report on pages 70 to 76 under the heading Risks that Could Affect
Our Business and Results, on pages 60 to 63 under the heading Our Competitive Environment and on
pages 63 to 69 under the heading Our Regulatory Environment, as updated in the BCE 2011 First
Quarter MD&A under the headings Updates to Our Regulatory Environment and Assumptions and Risks
that Could Affect Our Business and Results on pages 17 to 20, and 21 to 24, respectively, of the
BCE 2011 First Quarter Shareholder Report, as further updated in the BCE 2011 Second Quarter MD&A,
under the headings Updates to Our Regulatory Environment and Assumptions and Risks that Could
Affect Our Business and Results provided on pages 20 to 22, and 22 to 24,
respectively, of the BCE 2011 Second Quarter Shareholder Report, which BCE 2010 MD&A, BCE 2011
First Quarter MD&A and BCE 2011 Second Quarter MD&A are incorporated by reference into this
Prospectus.
In addition, Debt Securities denominated or payable in foreign currencies may entail
significant risks, and the extent and nature of such risks change continuously. These risks
include, without limitation, the possibility of significant fluctuations in the foreign currency
market, the imposition or modification of foreign exchange controls and potential illiquidity in
the secondary market. These risks will vary depending upon the currency or currencies involved.
Prospective purchasers should consult their own financial and legal advisors as to the risks
entailed in an investment in Debt Securities denominated in currencies other than Canadian dollars.
Such Debt Securities are not an appropriate investment for investors who are unsophisticated with
respect to foreign currency transactions.
There is currently no market through which the Debt Securities may be sold and purchasers may
not be able to resell the Debt Securities issued hereunder. This may affect the pricing of the Debt
Securities in the secondary market, the transparency and availability of trading prices, the
liquidity of the securities, and the extent of issuer regulation. Also, it cannot be assured that a
secondary market for trading in the Debt Securities will develop or that any secondary market which
does develop will continue. See the Risk Factors section of the applicable Prospectus Supplement.
Although the Debt Securities and the Guarantee may not necessarily be subordinated to any
other indebtedness, they are not secured. Furthermore, although Bell Canadas and BCEs various
debt instruments restrict the incurrence of secured indebtedness, such indebtedness may, subject to
certain conditions, be incurred. In addition, Bell Canadas and BCEs subsidiaries may incur
indebtedness. Although BCE is the Guarantor of the Debt Securities that may be issued from time to
time hereunder, it is not subject to the limitation on liens and other covenants under the
Indentures. Consequently, BCE may, subject to the limitations and covenants under its own debt
instruments, incur substantial additional indebtedness, which could make it more difficult for BCE
to fulfill its
15
Guarantee obligations with respect to the Debt Securities. The Debt Securities will be
effectively subordinated to the creditors of Bell Canadas subsidiaries and the Guarantee will be
effectively subordinated to the creditors of BCEs subsidiaries, in that the right of Bell Canada
or BCE, as the case may be, to participate as a shareholder in the distribution of the assets of
any subsidiary upon any such distribution would be subject to the prior claims of the creditors of
such subsidiary.
Finally, there is no assurance that any credit rating, if any, assigned to Debt Securities
issued hereunder will remain in effect for any given period of time or that any rating will not be
lowered or withdrawn entirely by the relevant rating agency. A lowering or withdrawal of such
rating may have an adverse effect on the market value of the Debt Securities.
LEGAL MATTERS
Unless otherwise specified in the Prospectus Supplement relating a particular offering of Debt
Securities, certain legal matters relating to the issuance of the Debt Securities will be passed
upon by Ms. Martine Turcotte, Vice Chair, Québec, of Bell Canada, Mr. Michel Lalande, Senior
Vice-President General Counsel of Bell Canada, Stikeman Elliott LLP and Sullivan & Cromwell LLP
on behalf of the Corporation.
INTEREST OF EXPERTS
Deloitte & Touche LLP, the external auditors of the Corporation, reported on the BCE 2010
Financial Statements and on BCEs internal control over financial reporting, which reports are
incorporated by reference herein. Deloitte & Touche LLP is independent within the meaning of the
Code of Ethics of the Ordre des Comptables Agréés du Québec.
PURCHASERS STATUTORY RIGHTS
Securities legislation in certain of the provinces of Canada provides purchasers with the
right to withdraw from an agreement to purchase securities. This right may be exercised within two
business days after receipt or deemed receipt of a prospectus and any amendment, irrespective of
the determination at a later date of the purchase price of the securities distributed if offered on
a non-fixed price basis. In several of the provinces, securities legislation further provides a
purchaser with remedies for rescission or, in some jurisdictions, revisions of the price or damages
if the prospectus, the accompanying prospectus supplement relating to securities purchased by a
purchaser and any amendment contains a misrepresentation or is not delivered to the purchaser,
provided that such remedies for rescission, revisions of the price or damages are exercised by the
purchaser within the time limit prescribed by the securities legislation of the purchasers
province. The purchaser should refer to any applicable provisions of the securities legislation of
the purchasers province for the particulars of these rights or consult with a legal advisor.
EXPERTS
The audited consolidated financial statements of BCE for each of the three years in the period
ended December 31, 2010 and the effectiveness of BCEs internal control over financial reporting
have been audited by Deloitte & Touche LLP, independent registered chartered accountants, as stated
in their reports, which are incorporated herein by reference. Such financial statements have been
so incorporated in reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
ENFORCEABILITY OF CIVIL LIABILITIES UNDER THE U.S. FEDERAL SECURITIES LAWS
BCE and Bell Canada are Canadian companies and are governed by the laws of Canada. A
substantial portion of their assets is located outside the United States and some or all of the
directors and officers and some or all of the experts named in this Prospectus are residents of
Canada. As a result, it may be difficult for investors to effect service within the United States
upon BCE or Bell Canada and those directors, officers and experts, or to realize in the United
States upon judgments of courts of the United States predicated upon civil liability of BCE or Bell
Canada and such directors, officers or experts under the United States federal securities laws. BCE
and Bell Canada have been advised by external counsel that there is doubt as to the enforceability
in a Canadian court in
16
original actions, or in actions to enforce judgments of United States courts, of civil
liabilities predicated upon United States federal securities laws.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been filed with the SEC as part of the Registration Statement of
which this Prospectus is a part: (i) the documents listed in the second paragraph under Documents
Incorporated by Reference; (ii) the consent of Deloitte & Touche LLP, independent registered
chartered accountants; (iii) powers of attorney from directors and officers of BCE and Bell Canada;
(iv) the MTN Indenture; and (v) the Subordinated Indenture.
17
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
Indemnification
The directors of BCE Inc. (BCE), adopted on May 27, 2003 and the directors of Bell Canada
(together with BCE, the Co-Registrants) also adopted on May 27, 2003, a resolution providing as
follows:
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Section 8 INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Subject to the limitations contained in the CBCA but without limit to the right of the
Corporation to indemnify any person under the CBCA or otherwise, the Corporation shall indemnify
a Director or Officer, a former Director or Officer or another individual who acts or acted at
the Corporations request as a director or officer, or an individual acting in a similar
capacity, of another entity, against all costs, charges and expenses, including an amount paid
to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of
any civil, criminal, administrative, investigative or other proceeding in which the individual
is involved because of that association with the Corporation or other entity if (a) such
individual acted honestly and in good faith with a view to the best interests of the
Corporation, or, as the case may be, to the best interests of the other entity for which the
individual acted as director or officer or in a similar capacity at the Corporations request;
and (b) in the case of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, such individual had reasonable grounds for believing that such individuals
conduct was lawful. The Corporation shall advance moneys to the Director, Officer or other
individual for the costs, charges and expenses of a proceeding referred to herein providing that
the individual shall repay the moneys if the individual does not fulfill the conditions of
subsection 124(3) of the CBCA.
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This resolution represents, in general terms, the extent to which officers and directors may
be indemnified by a Co-Registrant under the
Canada Business Corporations Act
(CBCA), the
governing Act to which each Co-Registrant is subject. Except in the case of an action taken by a
Co-Registrant or of a derivative action taken by a shareholder on behalf of such Co-Registrant, as
provided below, the Act provides that a director or officer may be indemnified by such
Co-Registrant against all costs, charges and expenses, including an amount paid to settle an action
or satisfy a judgment if (i) he acted honestly and in good faith with a view to the best interests
of such Co-Registrant; and (ii) in the case of a criminal or administrative action he had
reasonable grounds for believing that his conduct was lawful. The right of indemnification is more
limited where directors or officers are sued by the applicable Co-Registrant or on its behalf by a
shareholder. In those cases, each Co-Registrant may with the approval of a court indemnify
directors and officers against all costs, charges and expenses but not the amount of the judgment
or settlement of an action, provided he fulfills the conditions of (i) and (ii) above. A director
or officer must be indemnified for costs, charges and expenses if he was substantially successful
on the merits of his defence and fulfils the conditions of (i) and (ii) above.
The directors and officers of the Co-Registrants are covered by an insurance policy
indemnifying against civil liabilities which might be incurred by them in such capacities.
In addition, each director and officer of the Co-Registrants has entered into an
indemnification agreement with the Co-Registrants generally providing for indemnification of such
person for liabilities incurred in connection with his or her service as a director or officer and
obliging the Co-Registrants to maintain liability insurance to support their indemnification
obligations under such agreement.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers or persons controlling the Co-Registrants pursuant to the foregoing
provisions, the Co-Registrants have been informed that in the opinion of the U.S. Securities and
Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
II-1
EXHIBITS
The exhibits to this registration statement are listed in the exhibit index, which appears
elsewhere herein.
II-2
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
The Co-Registrants undertake to make available, in person or by telephone, representatives to
respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so
by the Commission staff, information relating to the securities registered pursuant to this Form
F-9 or to transactions in said securities.
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Item 2.
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Consent to Service of Process.
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Concurrently with the filing of this registration statement, the Co-Registrants are filing
with the Commission a written irrevocable consent and power of attorney on Form F-X.
Concurrently with the filing of this registration statement, any non-U.S. person acting as
trustee with respect to the registered securities shall file with the Commission a written
irrevocable consent and power of attorney on Form F-X.
Any change to the name or address of the agent for service of the Co-Registrants shall be
communicated promptly to the Commission by amendment to the applicable Form F-X referencing the
file number of the relevant registration statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act, each of the Co-Registrants certifies that
it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-9
and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Montréal, Province of Québec, Canada, on this 5
th
day of August, 2011.
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BELL CANADA
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by
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/s/ George A. Cope
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Name:
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George A. Cope
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Title:
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President and Chief Executive Officer
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BCE INC.
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by
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/s/ George A. Cope
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Name:
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George A. Cope
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Title:
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President and Chief Executive Officer
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III-2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below constitutes
and appoints each of Siim A. Vanaselja, Martine Turcotte, Paul Stinis and Alain F. Dussault as his
or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place and stead, in any and
all capacities, to do any and all things and execute any and all instruments that such attorney may
deem necessary or advisable under the Securities Act, and any rules, regulations and requirements
of the Securities and Exchange Commission (the Commission) thereunder, in connection with the
registration under the Securities Act of debt securities of Bell Canada and the guarantee of BCE of
such debt securities, including specifically, but without limiting the generality of the foregoing,
the power and authority to sign his or her name, in his or her capacity as a member of the Board of
Directors or officer of the Co-Registrants, on the registration statement relating to such debt
securities and such guarantee of debt securities and/or such other form or forms as may be
appropriate to be filed with the Commission as any of them deem appropriate in respect of the debt
securities of Bell Canada and the guarantee of BCE of such debt securities, on any and all
amendments, including post-effective amendments, to the registration statement and on any and all
instruments and documents filed as part of or in connection with the registration statement and any
and all amendments thereto, including post-effective amendments.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title with Co-Registrant
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Date
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/s/ George A. Cope
George A. Cope
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President and Chief Executive Officer, and Director,
BCE Inc. and Bell Canada
(Principal Executive Officer)
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August 5, 2011
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/s/ Siim A. Vanaselja
Siim A. Vanaselja
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Executive Vice-President and Chief Financial Officer,
BCE Inc. and Bell Canada
(Principal Financial Officer)
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August 5, 2011
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/s/ Karyn A. Brooks
Karyn A. Brooks
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Senior Vice-President and Controller, BCE Inc. and
Bell Canada
(Principal Accounting Officer)
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August 5, 2011
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/s/ Thomas C. ONeill
Thomas C. ONeill
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Chairman and Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Barry K. Allen
Barry K. Allen
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ André Bérard
André Bérard
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Ronald A. Brenneman
Ronald A. Brenneman
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Sophie Brochu
Sophie Brochu
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Robert E. Brown
Robert E. Brown
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Anthony S. Fell
Anthony S. Fell
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Edward C. Lumley
Edward C. Lumley
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Jim Prentice
Jim Prentice
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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III-3
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/s/ Robert C. Simmonds
Robert C. Simmonds
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Carole Taylor
Carole Taylor
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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/s/ Paul R. Weiss
Paul R. Weiss
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Director, BCE Inc. and Bell Canada
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August 5, 2011
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III-4
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this
registration statement, solely in the capacity of the duly authorized representative of Bell Canada
and BCE Inc. in the United States, in the City of Newark, State of Delaware on this 5
th
day of August, 2011.
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Puglisi & Associates
(Authorized U.S. Representative)
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by
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/s/ Donald J. Puglisi
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Name:
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Donald J. Puglisi
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Title:
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Managing Director
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III-5
INDEX TO EXHIBITS
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Exhibit No.
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4.1
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The unaudited selected summary financial information of Bell Canada for the periods
ended December 31, 2010 and 2009.
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4.2
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The annual audited consolidated financial statements of BCE for the year ended
December 31, 2010, including consolidated balance sheets as at December 31, 2009
and December 31, 2008 and the consolidated statements of income, cash flows, equity
and comprehensive income for each of the years in the three-year period ended
December 31, 2010 and related notes, together with the auditors report thereon and
the auditors report on BCEs internal control over financial reporting
(incorporated by reference to Exhibit 99.2 to BCEs Form 40-F filed with the
Securities and Exchange Commission on March 15, 2011 (the Form 40-F)).
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4.3
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The managements discussion and analysis of BCE for the year ended December 31,
2010 (incorporated by reference to Exhibit 99.2 of the Form 40-F).
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4.4
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Annual Information Form of BCE for the year ended December 31, 2010 (incorporated
by reference to Exhibit 99.1. of the Form 40-F).
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4.5
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The management information circular of BCE dated March 10, 2011, in connection with
the annual meeting of BCEs shareholders held on May 12, 2011 (incorporated by
reference to Exhibit 1 to BCEs Form 6-K, furnished to the Commission on March 29,
2011).
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4.6
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The interim unaudited selected summary financial information of Bell Canada for the
three months ended March 31, 2011 and 2010 (incorporated by reference to Exhibit
99.5 to BCEs Form 6-K, furnished to the Commission on May 12, 2011).
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4.7
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The interim unaudited consolidated financial statements of BCE for the three months
ended March 31, 2011, including consolidated statements of financial position as at
March 31, 2011, December 31, 2010 and January 1, 2010, consolidated income
statements, consolidated statements of comprehensive income, consolidated
statements of changes in equity and consolidated statements of cash flows for the
three months ended March 31, 2011 and March 31, 2010 and related notes
(incorporated by reference to Exhibit 99.1 to BCEs Form 6-K, furnished to the
Commission on May 12, 2011).
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4.8
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The managements discussion and analysis of BCE for the three months ended March
31, 2011 (incorporated by reference to Exhibit 99.1 to BCEs Form 6-K, furnished to
the Commission on May 12, 2011).
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4.9
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The interim unaudited selected summary financial information of Bell Canada for the
three months ended June 30, 2011 and 2010 (incorporated by reference to Exhibit
99.5 to BCEs Form 6-K, furnished to the Commission on August 4, 2011).
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4.10
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The interim unaudited consolidated financial statements of BCE for the six months
ended June 30, 2011, including consolidated statements of financial position as at
June 30, 2011, December 31, 2010 and January 1, 2010, consolidated income
statements, consolidated statements of comprehensive income, consolidated
statements of changes in equity and consolidated statements of cash flows for the
six months ended June 30, 2011 and June 30, 2010 and related notes (incorporated by
reference to Exhibit 99.1 to BCEs Form 6-K, furnished to the Commission on August
4, 2011).
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4.11
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The managements discussion and analysis of BCE for the six months ended June 30,
2011 (incorporated by reference to Exhibit 99.1 to BCEs Form 6-K, furnished to the
Commission on August 4, 2011).
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4.12
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BCEs Form 6-K, furnished to the Commission on April 1, 2011.
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5.1
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Consent of Deloitte & Touche LLP.
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Ex.-1
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6.1
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Powers of Attorney (included on the signature pages of this registration statement).
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7.1
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Indenture dated as of November 28, 1997 between Bell Canada, as issuer and CIBC
Mellon Trust Company, as trustee.
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7.2
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First Supplemental Indenture dated as of July 12, 1999 between Bell Canada, as
issuer and CIBC Mellon Trust Company, as trustee.
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7.3
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Second Supplemental Indenture dated as of February 1, 2007 among Bell Canada, as
issuer, BCE as guarantor and CIBC Mellon Trust Company, as trustee.
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7.4
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Indenture dated as of April 17, 1996 between Bell Canada, as issuer and Montreal
Trust Company (the predecessor company of Computershare Trust Company of Canada),
as trustee.
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7.5
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First Supplemental Indenture dated as of April 17, 1996 between Bell Canada, as
issuer and Montreal Trust Company (the predecessor company of Computershare Trust
Company of Canada), as trustee.
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7.6
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Second Supplemental Indenture dated as of December 30, 1996 between Bell Canada, as
issuer and Montreal Trust Company (the predecessor company of Computershare Trust
Company of Canada), as trustee.
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7.7
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Third Supplemental Indenture dated as of April 1, 2003 between Bell Canada, as
issuer, Montreal Trust Company of Canada and Computershare Trust Company of Canada,
as replacement trustee.
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7.8
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Fourth Supplemental Indenture dated as of February 1, 2005 between Bell Canada, as
issuer and Computershare Trust Company of Canada, as trustee.
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7.9
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Fifth Supplemental Indenture dated as of January 1, 2007 between Bell Canada, as
issuer and Computershare Trust Company of Canada, as trustee.
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7.10
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Sixth Supplemental Indenture dated as of February 1, 2007 between Bell Canada, as
issuer, BCE, as guarantor and Computershare Trust Company of Canada, as trustee.
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Ex.-2
Exhibit 7.1
TRUST INDENTURE
between
BELL CANADA
and
CIBC MELLON TRUST COMPANY -
COMPAGNIE TRUST CIBC MELLON
In respect of
Debentures
Bearing formal date of November 28, 1997.
TABLE OF CONTENTS
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Article
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Title
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Page
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ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 1.01.
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Definitions
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1
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Section 1.02.
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Form of Documents to be Delivered
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7
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Section 1.03.
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Securityholders Resolutions
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7
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Section 1.04.
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Notices, Etc., to Trustee and Corporation
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8
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Section 1.05.
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Notices to Securityholders; Waiver
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9
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Section 1.06.
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Effect of Headings and Table of Contents
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9
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Section 1.07.
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Successors and Assigns
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9
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Section 1.08.
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Separability Clause
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9
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Section 1.09.
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Benefits of Indenture
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9
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Section 1.10.
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Governing Law
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10
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Section 1.11.
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Legal Holidays
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10
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Section 1.12.
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Language of Notices, Etc.
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10
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Section 1.13.
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Trusts created within the meaning of the Civil Code of Québec
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10
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Section 1.14.
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Conversion Into Canadian Funds
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10
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TWO SECURITY FORMS
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11
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Section 2.01.
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Forms Generally
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11
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THREE THE SECURITIES
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11
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Section 3.01.
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Title and Terms
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11
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Section 3.02.
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Issuance, Authentication and Delivery of Securities
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12
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Section 3.03.
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Form of Securities
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12
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Section 3.04.
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Execution, Authentication, Delivery and Dating
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13
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Section 3.05.
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Temporary Securities
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13
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Section 3.06.
|
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Registration, Registration of Transfer and Exchange
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14
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|
Section 3.07.
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Mutilated, Destroyed, Lost and Stolen Securities
|
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|
15
|
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Section 3.08.
|
|
Payment of Principal and Interest; Interest Rights Preserved
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|
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16
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|
Section 3.09.
|
|
Persons Deemed Owners
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|
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18
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|
Section 3.10.
|
|
Cancellation and Disposal of Securities
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|
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18
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|
Section 3.11.
|
|
Depository System
|
|
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18
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|
Section 3.12.
|
|
Transfer under Depository System
|
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18
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Section 3.13.
|
|
Termination of Depository System
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|
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19
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|
Section 3.14.
|
|
Termination of Depository
|
|
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20
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|
Section 3.15.
|
|
Dealings with the Depository
|
|
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20
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|
Section 3.16.
|
|
Payments of Principal and Interest During Depository System
|
|
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21
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|
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|
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|
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|
|
FOUR SATISFACTION AND DISCHARGE
|
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|
22
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|
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|
|
|
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Section 4.01.
|
|
Satisfaction and Discharge of Indenture
|
|
|
22
|
|
Section 4.02.
|
|
Application of Trust Funds
|
|
|
23
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|
|
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|
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|
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|
|
FIVE REMEDIES
|
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23
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|
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|
|
|
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|
|
Section 5.01.
|
|
Events of Default
|
|
|
23
|
|
Section 5.02.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
25
|
|
Section 5.03.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
26
|
|
Section 5.04.
|
|
Trustee May File Proofs of Claim
|
|
|
27
|
|
Section 5.05.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
27
|
|
Section 5.06.
|
|
Application of Money Collected
|
|
|
28
|
|
Section 5.07.
|
|
Limitation on Suits
|
|
|
28
|
|
Section 5.08.
|
|
Restoration of Rights and Remedies
|
|
|
29
|
|
Section 5.09.
|
|
Rights and Remedies Cumulative
|
|
|
29
|
|
Section 5.10.
|
|
Delay or Omission Not Waiver
|
|
|
29
|
|
Section 5.11.
|
|
Control by Securityholders
|
|
|
29
|
|
Section 5.12.
|
|
Waiver of Past Defaults
|
|
|
30
|
|
Section 5.13.
|
|
Undertaking for Costs
|
|
|
30
|
|
|
|
|
|
|
|
|
SIX THE TRUSTEE
|
|
|
30
|
|
|
|
|
|
|
|
|
Section 6.01.
|
|
Certain Duties and Responsibilities
|
|
|
30
|
|
Section 6.02.
|
|
Certain Rights of Trustee
|
|
|
31
|
|
Section 6.03.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
32
|
|
Section 6.04.
|
|
May Hold Securities
|
|
|
32
|
|
Section 6.05.
|
|
Money Held in Trust
|
|
|
32
|
|
Section 6.06.
|
|
Compensation and Reimbursement
|
|
|
33
|
|
Section 6.07.
|
|
Disqualification; Conflicting Interests
|
|
|
33
|
|
Section 6.08.
|
|
Corporate Trustee Required; Eligibility
|
|
|
33
|
|
Section 6.09.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
34
|
|
Section 6.10.
|
|
Acceptance of Appointment by Successor
|
|
|
35
|
|
Section 6.11.
|
|
Merger or Consolidation
|
|
|
35
|
|
Section 6.12.
|
|
Fondé de pouvoir
|
|
|
35
|
|
|
|
|
|
|
|
|
SEVEN CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
|
|
|
37
|
|
|
|
|
|
|
|
|
Section 7.01.
|
|
Corporation May Consolidate, etc., only on Certain Terms
|
|
|
37
|
|
Section 7.02.
|
|
Successor Corporation Substituted
|
|
|
38
|
|
|
|
|
|
|
|
|
EIGHT SUPPLEMENTAL INDENTURES
|
|
|
38
|
|
|
|
|
|
|
|
|
Section 8.01.
|
|
Execution of Supplemental Indentures
|
|
|
38
|
|
Section 8.02.
|
|
Rights of Trustee Upon Execution of Supplemental Indentures
|
|
|
39
|
|
Section 8.03.
|
|
Effect of Supplemental Indentures
|
|
|
40
|
|
Section 8.04.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
40
|
|
|
|
|
|
|
|
|
NINE MEETINGS OF HOLDERS OF SECURITIES
|
|
|
40
|
|
|
|
|
|
|
|
|
Section 9.01.
|
|
Purposes for Which Meetings May Be Called
|
|
|
40
|
|
Section 9.02.
|
|
Powers Exercisable by Extraordinary Resolution
|
|
|
40
|
|
Section 9.03.
|
|
Call, Notice and Place of Meetings
|
|
|
42
|
|
Section 9.04.
|
|
Persons Entitled to Vote at Meetings
|
|
|
43
|
|
Section 9.05.
|
|
Quorum; Action
|
|
|
43
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 9.06.
|
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
|
|
43
|
|
Section 9.07.
|
|
Counting Votes and Recording Action of Meetings
|
|
|
44
|
|
Section 9.08.
|
|
Distribution of Proxy Material to Participants
|
|
|
45
|
|
Section 9.09.
|
|
Serial Meetings
|
|
|
45
|
|
|
|
|
|
|
|
|
TEN COVENANTS
|
|
|
47
|
|
|
|
|
|
|
|
|
Section 10.01.
|
|
Payment of Principal and Interest
|
|
|
47
|
|
Section 10.02.
|
|
Maintenance of Places of Registration
|
|
|
47
|
|
Section 10.03.
|
|
Money for Security Payments to be Held in Trust
|
|
|
47
|
|
Section 10.04.
|
|
Corporate Existence
|
|
|
48
|
|
Section 10.05.
|
|
Negative Pledge
|
|
|
48
|
|
Section 10.06.
|
|
Additional Permitted Liens
|
|
|
49
|
|
Section 10.07.
|
|
Waiver of Certain Covenants
|
|
|
49
|
|
Section 10.08.
|
|
Annual Certificate of Compliance
|
|
|
50
|
|
|
|
|
|
|
|
|
ELEVEN REDEMPTION OF SECURITIES
|
|
|
50
|
|
|
|
|
|
|
|
|
Section 11.01.
|
|
Applicability of Article
|
|
|
50
|
|
Section 11.02.
|
|
Partial Redemption; Notice to Trustee
|
|
|
50
|
|
Section 11.03.
|
|
Selection by Trustee of Securities to be Redeemed
|
|
|
50
|
|
Section 11.04.
|
|
Notice of Redemption
|
|
|
51
|
|
Section 11.05.
|
|
Deposit of Redemption Price
|
|
|
51
|
|
Section 11.06.
|
|
Securities Payable on Redemption Date
|
|
|
51
|
|
Section 11.07.
|
|
Securities Redeemed in Part
|
|
|
52
|
|
Section 11.08.
|
|
Purchase
|
|
|
52
|
|
Section 11.10.
|
|
Cancellation of Securities
|
|
|
53
|
|
|
|
|
|
|
|
|
TWELVE COUNTERPARTS AND LANGUAGE
|
|
|
53
|
|
|
|
|
|
|
|
|
Section 12.01.
|
|
Counterparts
|
|
|
53
|
|
Section 12.02.
|
|
Language
|
|
|
53
|
|
|
|
|
|
|
|
|
TESTIMONIUM
|
|
|
54
|
|
|
|
|
|
|
|
|
SCHEDULE A FORM OF PHYSICAL SECURITIES
|
|
|
55
|
|
|
|
|
|
|
|
|
SCHEDULE B FORM OF GLOBAL CERTIFICATE
|
|
|
61
|
|
THIS INDENTURE
dated as of and bearing formal date of November 28, 1997 between BELL
CANADA, a corporation continued under the
Canada Business Corporations Act
(herein called the
Corporation
) having its registered office in the city of Montréal, Province of Québec, and CIBC
MELLON TRUST COMPANY COMPAGNIE TRUST CIBC MELLON, a company incorporated under the laws of Canada
duly authorized to carry on the business of a trust company (herein called the
Trustee
).
Recitals of the Corporation
The Corporation has duly authorized the creation of Debentures (herein called the
Securities
) for
issuance to be made from time to time and, to provide therefor, has duly authorized the execution
and delivery of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General
Application
Section 1.01. Definitions
(a)
|
|
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
|
this 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.
All references in this instrument to designated Articles, Sections and other subdivisions
are to the designated Articles, Sections and other subdivisions of this instrument. The words
herein, hereof, hereunder and herewith and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
(b)
|
|
The terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular.
|
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.
-2-
Authorized Newspaper means a newspaper of general circulation in the relevant area, printed
in the English language and, if the relevant area is in the Province of Québec, also in the French
language, and customarily published on each business day, whether or not published on Saturdays,
Sundays or holidays.
Banking Day, when used with respect to any Place of Payment or Place of Registration, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or Place of Registration are authorized or obligated by law
to close for the entire day.
Beneficial Owner means any Person holding a beneficial interest in the Securities issued in
book-entry only form.
Branch Registrar has the meaning specified in Section 3.06.
Branch Security Register has the meaning specified in Section 3.06.
Central Security Register has the meaning specified in Section 3.06.
Certified Resolution means a copy of a resolution, certificate or other instrument certified
by the Secretary or an Assistant Secretary of the Corporation or by another Officer of the
Corporation as having been duly adopted by the Directors or an Officer and to be in full force and
effect on the date of such certification.
Civil Code means the
Civil Code of Québec
, as amended, and any code that may be substituted
therefor, as from time to time amended; and reference to a particular section of the Civil Code
includes reference to a section of similar effect in any such substituted or amended code.
Corporation means the Person named as the Corporation in the first paragraph of this
instrument until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Corporation shall mean such successor corporation.
Corporation Request and Corporation Order mean, respectively, a written request or order
after having been signed in the name of the Corporation by an Officer.
Counsel means a barrister or solicitor or firm of barristers and solicitors, who may be
counsel for or employed by the Corporation, or other counsel acceptable to the Trustee.
Current Debt means all Debt other than Funded Debt.
Debt means all indebtedness issued, assumed or guaranteed for borrowed money or for the
deferred purchase price of property.
Defaulted Interest means any interest on any Security which is payable, but which has not
been punctually paid or duly provided for, on any Interest Payment Date.
-3-
Depository means with respect to Securities of any series issuable in whole or in part in
book-entry only form, the person designated as Depository by Corporation Order pursuant to Section
3.02 hereof until a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter the term Depository shall mean or include each
Person who is then a Depository hereunder and if at any time there is more than one such Person,
the term Depository as used with respect to the Securities of any series shall mean the
Depository with respect to the Securities of such series.
Depository System means the record entry and securities transfer system, which is
administered by the Depository in accordance with the operating rules and procedures of its
depository service for book-entry only securities in force from time to time, or any successor
system.
Directors means either the board of directors of the Corporation or any duly authorized
committee or member of the board of directors of the Corporation.
Event of Default has the meaning specified in Section 5.01.
Extraordinary Resolution means any Securityholders Resolution which has been (a) signed by
or for the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities; or
(b) adopted by the favorable votes of the Holders of not less than 66 2/3% of the principal amount
of the Outstanding Securities presented and voted thereon at a meeting of the Holders of Securities
duly called and held pursuant to the provisions of Article Nine.
Funded Debt means all Debt maturing by the terms thereof on, or extendible at the option of
the Corporation to, a date more than one year after the date of determination thereof.
Global Certificates has the meaning specified in Section 3.12.
Holder when used with respect to any Security means a Securityholder.
Interest Payment Date means the Stated Maturity of an instalment of interest on the
Securities.
Maturity when used with respect to any Security means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration or call for redemption or otherwise.
Mortgage includes a mortgage, hypothec, security interest, pledge, lien or privilege,
floating charge or other encumbrance.
Net Worth of the Corporation means the amount of shareholders equity as shown by the
Corporations most recent audited balance sheet prepared in accordance with generally accepted
accounting principles as applied in Canada.
-4-
Officer means, unless otherwise provided for in this Indenture, the chairman of the board,
the president, a vice-president, the treasurer, the secretary, any assistant treasurer or an
assistant secretary and, whenever duly empowered, any other officer or employee, of the
Corporation.
Officers Certificate means a certificate signed by an Officer.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
|
(i)
|
|
Securities theretofore cancelled by the Registrar or delivered
to the Registrar for cancellation;
|
|
|
(ii)
|
|
Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited in trust with the Trustee or
any Paying Agent (other than the Corporation) or held in trust by the
Corporation (if the Corporation shall act as a 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;
|
|
|
(iii)
|
|
Securities which pursuant to Section 3.07 have been paid or in
exchange for or in lieu of which other Securities have been authenticated and
delivered, other than any such Securities in respect of which there shall have
been presented to the Registrar proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Corporation; and
|
|
|
(iv)
|
|
Securities which have been partially redeemed, in which case
such Securities shall be deemed to be outstanding only to the extent of the
unredeemed part of the principal amount thereof;
|
provided, however, that for the purpose of determining a) if the Holders of the requisite principal
amount of Outstanding Securities have given or taken, or constitute a quorum for any meeting of
Holders of Securities authorizing the giving or taking of, any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder or b) if a Holder of Outstanding
Securities is entitled to vote at such meeting, Securities owned by the Corporation or any
Affiliate of the Corporation shall be deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such determination, only Securities
which 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 Corporation or any Affiliate of the Corporation.
Participant means a participant in the Depository System.
-5-
Paying Agent means any Person, which may be the Corporation, the Trustee or the Registrar,
designated by the Corporation to pay the principal of or interest on any Securities on behalf of
the Corporation.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Physical Securities means Securities in the form of individual certificates issued pursuant
to Section 3.03(a) and Securities issued to Beneficial Owners in fully registered and certificated
form in accordance with Section 3.14.
Place of Payment has the meaning ascribed thereto in Section 3.08.
Places of Registration means and includes, subject to the provisions of Section 10.02, the
principal office of the Registrar and of the Branch Registrar(s), if any, in each of the cities of
Montréal and Toronto and any other office or agency appointed by the Corporation pursuant to
Section 10.02.
Predecessor Securities 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 3.07 in lieu of
a lost, destroyed or stolen Security shall be deemed to evidence the same Debt as the lost,
destroyed or stolen Security.
Purchase Money Mortgage means Mortgages on property existing at the time of acquisition
thereof by the Corporation; or Mortgages on any property of the Corporation acquired, constructed
or improved by the Corporation after the date of this Indenture which are created or assumed
contemporaneously with, or within 180 days after, such acquisition, or completion of such
construction or improvement, to secure or provide for the payment of the purchase price thereof or
the cost of construction or improvements thereon incurred after the date of this Indenture
(including the cost of any underlying real property to which the Mortgage is permitted to extend by
the following proviso) provided, however, that in the case of any such acquisition, construction or
improvement, the Mortgage shall not apply to any property theretofore owned by the Corporation,
other than, in the case of any such construction or improvement, any real property, theretofore
substantially unimproved for the purposes of the Corporation, on which the property so constructed,
or the improvement, is located and other than any machinery or equipment installed at any time so
as to constitute immovable property or a fixture on the real property on which the property so
constructed, or the improvement, is located.
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 the Terms thereof.
Registrar has the meaning specified in Section 3.06.
-6-
Regular Record Date means in respect of any Interest Payment Date the date specified in
Section 3.01 or otherwise specified in the Terms pertaining to a series of Securities.
Security or Securities means any debenture or debentures of the Corporation, as the case
may be, issued in fully registered form, authenticated and delivered pursuant to this Indenture and
substantially in the forms set forth in Article Two.
Securityholder when used with respect to any Security means the Person in whose name such
Security is registered in the Central Security Register.
Securityholders Resolution when used with respect to any Securityholder has the meaning
specified in Section 1.03.
Security Registers has the meaning specified in Section 3.06.
Special Record Date for the payment of any Defaulted Interest (as defined in Section 3.08)
means a date fixed by the Trustee pursuant to Section 3.08.
Stated Maturity when used with respect to any Security or any instalment of interest thereon
means the date specified in such Security as the fixed date on which the principal of such Security
or such instalment of interest is due and payable.
Subsidiary means any corporation the majority of the shares of the share capital of which at
the time outstanding, having under ordinary circumstances (not dependent upon the happening of a
contingency) voting power to elect a majority of directors of such corporation, is owned directly
or indirectly by the Corporation or by one or more of its other Subsidiaries or by the Corporation
in conjunction with one or more of its other Subsidiaries;
Terms means, the specific terms of any series of Securities, including the designation, the
aggregate principal amount, the currency, the dates of issue, interest payment and maturity, the
interest rate (either fixed or floating, and, if floating, the manner of calculation thereof), any
redemption, conversion or exchange provisions, the repayment terms, the form and such other terms
as set forth in a Corporation Order delivered in respect thereof to the Trustee not inconsistent
with the terms of this Indenture.
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 such successor Trustee.
-7-
Section 1.02. Form of Documents to be Delivered
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Officer of the Corporation may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such Officer knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers
of the Corporation stating that the information with respect to such factual matters is in the
possession of the Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.03. Securityholders Resolutions
(a)
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Unless otherwise specified herein, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders of
Securities may be embodied in and evidenced by (1) one or more instruments of substantially
similar tenor signed by the Holders, in person or by agents duly appointed in writing, of not
less than 50% in principal amount of Outstanding Securities or (2) a resolution duly adopted
by the Holders of Securities at a meeting thereof duly called and held in accordance with the
provisions of Article Nine. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or resolution are delivered to the
Trustee and, where it is hereby expressly required, to the Corporation. Such instrument or
instruments and resolution (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the Securityholders Resolution of the Holders of Securities
signing such instrument or instruments or so voting on such resolution. 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 6.01) conclusive in favour of the Trustee
and the Corporation if made in the manner provided in this Section. Proof of the due adoption
of any such resolution by the appropriate percentage of Holders of Securities at a meeting
thereof shall be sufficient for any purpose of this Indenture if such resolution forms part of
and its due adoption by such appropriate percentage is
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evident from the record of such meeting prepared, signed and verified in the manner provided
in Section 9.07.
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(b)
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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 the certificate of any notary or
other officer authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution thereof. Where
such execution is by an officer of a corporation or a member of a partnership, on behalf of
such corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority.
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(c)
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The holding of Securities shall be proved by the Central Security Register.
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(d)
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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 transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done or suffered to be done by the Trustee or the Corporation in reliance
thereon, whether or not notation of such action is made upon such Security.
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Section 1.04. Notices, Etc., to Trustee and Corporation
Any request, demand, authorization, direction, notice, consent, waiver, Securityholders
Resolution 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 Securityholder or by the Corporation shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee
at its principal office in the City of Montréal in the Province of Québec or at any other
address previously furnished by notice in writing to the Corporation by the Trustee and
notified to the Securityholders in accordance with Section 1.05,
(2) the Registrar by any Securityholders or by the Corporation shall be sufficient for
every purpose hereunder if delivered or transmitted by facsimile transmission at a Place of
Registration; or
(3) the Corporation by the Trustee or by any Securityholder shall be sufficient for
every purpose hereunder if in writing and either mailed, first-class postage prepaid, or
telecopied and confirmed by first-class mail postage prepaid, to the Corporation at the
address of its principal office in the city of Montréal in the Province of Québec, to the
attention of its Secretary, or at any other address or to the attention of any other Person
previously furnished in writing to the Trustee by the Corporation and notified to the
Securityholders in accordance with Section 1.05.
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Section 1.05. Notices to Securityholders; Waiver
Except as otherwise expressly provided herein, where this Indenture provides for notice to
Securityholders of any event, such notice shall be sufficiently given to any Holder of Securities
if in writing and mailed, first-class postage prepaid, to such Holder of Securities, at his address
as it appears on the Central Security Register, not later than the latest date and not earlier than
the earliest date prescribed for the giving of such notice.
In any case where notice to Holders of Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security
shall affect the sufficiency of such notice with respect to other Holders of Securities.
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 first-class postage prepaid mail, then such
notification to Holders of Securities as shall be made with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Where this Indenture provides for notice to any Person 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 Securityholders 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.
Section 1.06. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.07. Successors and Assigns
All covenants and agreements in this Indenture by the Corporation shall bind its successors
and assigns, whether so expressed or not.
Section 1.08. 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 1.09. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall, except as may be
required by any applicable law, give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture. In the case of Securities registered in book-entry only
form under the Depository System, any reference in this Indenture to a Holder of a Security or to
a Securityholder shall be construed as a reference to the Depository.
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Section 1.10. Governing Law
This Indenture and each of the Securities shall be construed in accordance with and governed
by the laws of the Province of Québec and the laws of Canada applicable therein.
Section 1.11. Legal Holidays
In any case where any Interest Payment Date shall not be a Banking Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment
of interest need not be made at such Place of Payment on such day, but may be made on the next
succeeding Banking Day at such Place of Payment with the same force and effect as if made on such
Interest Payment Date, provided that if such payment is duly made on such next succeeding Banking
Day, no interest shall accrue on the amount so payable for the period from and after such Interest
Payment Date to and including such next succeeding Banking Day. The foregoing provisions shall also
apply to any payment of principal in any case where any date of Maturity shall not be a Banking Day
at the place where the Security must be surrendered in accordance with Section 3.08.
Section 1.12. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English or French language.
Section 1.13. Trusts created within the meaning of the
Civil Code of Québec
Any trusts created or constituted by the terms hereof (particularly those created and
constituted by Sections 3.08, 4.01, 4.02, 5.06, 10.03 and 11.05) and the administration of any such
trusts shall be governed by and in accordance with the provisions hereof (and, in particular,
Article Six hereof) which, to the extent permitted by applicable law, shall supersede any
provisions of applicable law (including, without limitation, those relating to the administration
of property of others), it being the intention of the parties that this Indenture and the
Securities issued pursuant hereto shall constitute the entire agreement of the parties.
Section 1.14. Conversion Into Canadian Funds
For the purpose of any provision of this Indenture entitling Holders or Beneficial Owners of
outstanding Securities to vote, sign consents, requests, requisitions or other instruments or to
take any other action under this Indenture, the principal sum of any Securities payable in a
currency other than the currency of Canada or in a unit of account defined in terms of the
currencies of two or more countries shall be converted into the currency of Canada in the manner,
on the date and at the rate of exchange which the Trustee in its absolute discretion may determine
to be fair and reasonable in the circumstances.
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ARTICLE TWO
Security Forms
Section 2.01. Forms Generally
The Securities and the Registrars certificate of authentication shall be in substantially the
forms set forth in Schedule A or B, with such appropriate insertions, omissions, substitutions and
other variations as the Corporation may authorize and the Trustee may assent to and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the Officers executing such Securities, as
evidenced by their signing of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof. The Securities may also be in any other form permitted under the
Canada Business Corporations Act
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ARTICLE THREE
The Securities
Section 3.01. Title and Terms
The aggregate principal amount of Securities which may be issued, authenticated and delivered
under this Indenture is unlimited.
Securities may be issued from time to time under this Indenture in one or more series. The
Terms of each such series shall be established in a Corporation Order delivered to the Trustee
prior to the initial issuance thereof, as specified in Section 3.02.
The Securities shall be known and designated as the Debentures of the Corporation, unless
otherwise provided in the Corporation Order setting out the Terms of any given series of
Securities. The Securities of any given series will have maturities of not less than one year from
the date of issue, will either be interest bearing Securities or non-interest bearing Securities
issued at a discount or a premium, and will be issued as fully registered Securities in
denominations of $1,000 and integral multiples thereof in Canadian currency or the approximate
equivalents thereof in other currencies at the time of issue. Interest, if any, on each Security
will be payable as provided in the Corporation Order setting out the Terms of such Security, and at
Maturity, and will be calculated and paid as set forth in the Terms pertaining to such Security and
in Section 3.08 of this Indenture.
Unless otherwise specified in the Corporation Order setting out the Terms of a series of
Securities, the Regular Record Date referred to in Section 3.08 for the payment of the interest
payable on any Interest Payment Date in respect of Securities shall be a day no earlier than the
day on which the Registrar shall cease to register the transfer of Securities as provided in
Section 3.06.
The Securities will rank
pari passu
with all other unsecured and unsubordinated indebtedness
for borrowed money of the Corporation.
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Section 3.02. Issuance, Authentication and Delivery of Securities
The Corporation may from time to time request the Registrar to authenticate and deliver
Securities of a series by delivering or transmitting by facsimile transmission to:
(a)
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the Trustee (and the Registrar, if other than the Trustee) a Corporation Order requesting the
authentication and delivery of such Securities and specifying the Terms of such series; and
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(b)
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the Trustee an Officers Certificate that the Corporation is not in default under any of the
provisions of this Indenture;
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provided that the requirements of this Section 3.02 may also be fulfilled pursuant to such other
procedures acceptable to the Trustee as may be specified from time to time by a Corporation Order.
The above-mentioned Corporation Order may determine that Securities having the same Terms as a
previously issued series of Securities (except for the aggregate principal amount thereof) be
authenticated and delivered as part of such existing series of Securities.
Upon the authentication and delivery by the Registrar of Securities in accordance with the
Corporation Order, the Terms specified in each such Corporation Order shall be deemed to be a
schedule to and form part of this Indenture.
Section 3.03. Form of Securities
The Securities may, at the sole discretion of the Corporation, be authenticated, in either the
English and French language versions or in both languages, in the form of individual certificates
as provided in paragraph (a) hereof or in a book-entry only form as provided in paragraph (b)
hereof
(a)
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Should the Securities be in the form of individual certificates, the Securities shall be
substantially in the form set out in Schedule A hereto; and
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(b)
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Should the Securities be in a book-entry only form under the Depository System, the
Securities shall be substantially in the form set out in Schedule B hereof.
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Section 3.04. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Corporation by any two Officers holding one
or more of the following offices: chairman of the board, president, executive vice-president,
vice-president, treasurer or secretary of the Corporation. Any such signature may be manual or
printed or otherwise mechanically reproduced and may, but need not be, under or accompanied by the
corporate seal of the Corporation or a reproduction thereof.
Securities bearing the printed or otherwise mechanically reproduced signature of any Person
who was at any time the proper Officer of the Corporation shall bind the Corporation,
notwithstanding that such Person has ceased to hold such office prior to the authentication and
delivery of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Corporation may deliver Securities executed by the Corporation to the Registrar, together with a
Corporation Order for the authentication and delivery of such Securities, and the Registrar in
accordance with such Corporation Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.
The date of issue of each Security shall be as specified in the Terms of the relevant series.
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 (or in any other form as may be agreed to by the
Trustee and the Corporation) executed by the Registrar by the manual signature of one of its
authorized officers, and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered hereunder.
The Securities shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as determined by the
Officers executing such Securities, as evidenced by their signing of such Securities.
Section 3.05. Temporary Securities
Pending the preparation of permanent Securities, the Corporation may execute, and upon
Corporation Order the Registrar shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the permanent Securities in lieu of which they are issued, in fully
registered form and with such appropriate insertions, omissions, substitutions and other variations
as the Officers executing such Securities may determine, as evidenced by their signing of such
Securities.
If temporary Securities are issued, the Corporation will cause permanent Securities to be
prepared without unreasonable delay. After the preparation of permanent
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Securities, the temporary Securities shall be exchangeable for permanent Securities upon
surrender of the temporary Securities at any Place of Registration, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities, the Corporation shall
execute and the Registrar shall authenticate and deliver in exchange therefor a like principal
amount of permanent Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this Indenture as permanent
Securities.
Section 3.06. Registration, Registration of Transfer and Exchange
Subject to Section 3.13(i), the Corporation shall cause to be kept at the principal office of
the Registrar in the City of Montréal (or at such other Place of Registration in Canada maintained
by the Registrar as may be requested by the Corporation with the approval of the Trustee) a central
Security register (herein referred to as the Central Security Register) and at each other Place
of Registration, a branch Security register (herein collectively referred to as the Branch
Security Registers and the Branch Security Registers together with the Central Security Register
are herein sometimes collectively referred to as the Security Registers) in which, subject to
such reasonable regulations as it may prescribe, the Corporation shall provide for the registration
of Securities (including Global Certificates) and the registration of transfers of Securities as
herein provided. A Branch Security Register shall at least contain particulars of the registration
of Securities and the registration of transfers of Securities made at the Place of Registration
where such Branch Security Register is being maintained and the Central Security Register shall
contain particulars of registrations of Securities and registrations of transfers of Securities
made at all Places of Registration.
Subject to Section 10.02, the Trustee is hereby appointed Registrar for the purpose of
registering Securities and transfers of Securities as herein provided on the Central Security
Register and Branch Registrar for the purpose of registering Securities and transfers of
Securities as herein provided on the Branch Security Register expressly provided for on the date
hereof in the City of Toronto.
Any office or agency appointed pursuant to Section 10.02 after the date hereof shall, by its
appointment as such, also be deemed to have been appointed a Branch Registrar for the purpose of
registering Securities and transfers of Securities as herein provided on the Branch Security
Register for which it has been appointed. Each Branch Registrar (if other than the Registrar) shall
provide the Registrar with the particulars of each registration of Securities and of transfers of
Securities made on the Branch Security Register for which it has been appointed Branch Registrar
immediately following any such registration.
Each of the Registrar or the Branch Registrar(s) (if other than the Registrar) are sometimes
referred to in this Indenture as the Registrar.
Upon surrender for transfer of any Security at any Place of Registration, the Corporation
shall execute, and the Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of a like aggregate principal amount, all as
requested by the transferor, provided, however, that no transfer of a Security will be required to
be registered during the ten days immediately preceding any Interest Payment Date relating thereto.
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At the option of the Holder, Securities may be exchanged for Securities of any authorized
denominations, of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any Place of Registration and upon payment, if the Corporation shall so require, of
the charges hereinafter provided.
Whenever any Securities are so surrendered for exchange, the Corporation shall execute, and
the Registrar shall authenticate and deliver, the Securities which the Securityholder making the
exchange is entitled to receive as in this Section provided.
Every Security surrendered for transfer shall (if so required by the Corporation or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
All Securities authenticated upon any registration of transfer or exchange of Securities shall
be the valid obligations of the Corporation, evidencing the same Debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
The Corporation may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Securities and in
addition a reasonable service charge for the services rendered and expenses incurred on any such
exchange or transfer, except in the case of any transfer or exchange expressly provided in this
Indenture to be made at the Corporations own expense or without expense or without charge to
Securityholders.
Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Registrar, the Corporation shall execute and
the Registrar shall thereupon authenticate and deliver in exchange therefor a new Security of like
principal amount, bearing a number not contemporaneously outstanding.
If there be delivered to the Corporation and to the Registrar
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(i)
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evidence to their satisfaction of the destruction, loss or
theft of any Security, and
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(ii)
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such security or indemnity in amount and form satisfactory to
them to save each of them and any agent of each of them harmless,
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then, in the absence of notice to the Corporation or the Registrar that such Security has been
acquired by a bona fide purchaser, the Corporation shall execute and the Registrar shall
authenticate and deliver in lieu of any such destroyed, lost or stolen Security, a new Security of
like principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Corporation in its discretion may, instead of issuing a new Security,
pay such Security.
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Upon the authentication of any new Security under this Section, the Corporation 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 Registrar)
incurred in connection therewith.
Every new Security authenticated pursuant to this Section in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation of the Corporation,
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 authenticated 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 3.08. Payment of Principal and Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid or duly provided for, on any
date of Stated Maturity thereof, shall be paid (less any applicable withholding tax) 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.
Payment of interest, if any, on any Security may be made at the option of the Corporation by
way of transfer of funds or by cheque mailed to the address of the Person entitled thereto as such
address shall appear on the Central Security Register (a Place of Payment).
Unless specified in the Terms of any Security, payment of principal on a Security at Maturity
will be made against surrender of the Security to the Registrar at any Place of Registration, or
against surrender of the Security to such other Person(s) and at such other place(s) as may be
notified by the Corporation to the Securityholders in accordance with Section 1.05.
Unless otherwise specified in the Terms of any Security, where interest is payable on any
Security, such Security shall bear interest from the later of its date of issuance and the Interest
Payment Date next preceding the date of authentication of such Security.
Unless otherwise provided in the Terms of any Security, interest shall be payable on all
overdue amounts of interest or principal in respect of any Security at a rate equal to the
prevailing rate of interest under the Terms of such Security, and shall be computed in the same
manner as interest on the original principal from the due date until actual payment.
Any Defaulted Interest on any Security shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date and such Defaulted Interest may be paid by the Corporation, at its
election in each case, either as provided in Clause (A) or in Clause (B) below:
(A) The Corporation may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective one or more Predecessor
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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 Corporation
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 Corporation
shall deposit with the Trustee or the Paying Agent 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 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 Corporation of such Special Record Date and, in the name and at
the expense of the Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of Securities not
less than 10 days nor more than 15 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been
so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective one or more Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the
following Clause (B).
(B) The Corporation may make payment of any Defaulted Interest in any other lawful manner
and upon such notice to the Securityholders if, after notice given by the Corporation to the
Trustee of the proposed payment and the manner and notice thereof, such manner of payment
and such notice shall be deemed appropriate 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.
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Section 3.09. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer, the Corporation, the
Trustee and the Registrar and any agent thereof may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of, and
interest on, such Security and for all other purposes whatsoever whether or not such Security be
overdue.
Section 3.10. Cancellation and Disposal of Securities
All Securities surrendered for payment, exchange or transfer shall, if surrendered to the
Corporation or any agent of the Corporation, be delivered to the Registrar and, if not already
cancelled, shall be promptly cancelled by it. The Corporation may at any time deliver to the
Registrar for cancellation any Securities previously authenticated and delivered hereunder, which
the Corporation may have acquired in any manner whatsoever, and all Securities so delivered shall
be promptly cancelled by the Registrar. 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 Registrar shall be retained and disposed of as
provided in the second paragraph of Section 11.09.
Section 3.11. Depository System
(1) Subject to Section 3.13, Securities issued in book-entry only form under the
Depository System shall be represented by one or more fully registered permanent global
certificates (the Global Certificates). The Global Certificates shall be held by, or on
behalf of, the Depository and shall be registered in any name used by the Depository from
time to time of as its nominee for the purposes of the Depository System.
(2) Unless otherwise specified in a Corporation Order, each Global Certificate shall
bear a legend in substantially the following form:
This Security is a Global Certificate within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or
its nominee. Except as otherwise provided in the Indenture, this Global
Certificate may be transferred in whole but not in part, only to another
nominee of the Depository or to a successor Depository or to a nominee of
such successor Depository.
Section 3.12. Transfer under Depository System
(1) Subject to Section 3.13, transfers and registrations of Global Certificates will
only be made to another nominee of the Depository or to a successor Depository or a nominee
of such successor Depository.
(2) The Corporation and the Trustee understand that transfers of beneficial ownership
in any Security represented by a Global Certificate will be effected only
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(i) with respect to the interest of Participants, through records maintained by the
Depository or its nominee for the Global Certificates, and (ii) with respect to interest of
Persons other than Participants, through records maintained by Participants. Beneficial
Owners who are not Participants but who desire to purchase, sell or otherwise transfer
ownership of or other interest in Securities represented by Global Certificates may do so
only through a Participant.
(3) The rights of Beneficial Owners shall be limited to those established by applicable
law and agreement between the Depository and the Participants and between such Participants
and Beneficial Owners, and must be exercised through a Participant in accordance with the
rules and procedures of the Depository.
(4) Subject to Section 3.13, neither the Corporation nor the Registrar shall be under
any obligation to deliver to Participants or Beneficial Owners, nor shall the Participants
or the Beneficial Owners have any right to require the delivery of, a certificate or other
instrument evidencing an interest in the Securities.
Section 3.13. Termination of Depository System
Upon the occurrence of any of the following events:
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(i)
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if required by applicable law;
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(ii)
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if the Depository System ceases to exist;
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(iii)
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if the Corporation or the Depository advises the Trustee that
the Depository is no longer wiling, able or qualified to discharge properly its
responsibilities as Holder of the Global Certificates and the Corporation is
unable to locate a qualified successor Depository;
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(iv)
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if the Corporation at its option elects to terminate its
present arrangements with the Depository for any reason (including, without
limitation, in circumstances where the Corporation considers it impracticable
or inefficient to effect any distribution, conversion or exchange in respect of
Securities through the facilities of the Depository); or
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(v)
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if after the occurrence of an Event of Default provided in
Section 5.01, the Depository advises the Trustee that it received written
notification from Participants, acting on behalf of Beneficial Owners
representing, in the aggregate, more than 50% of the aggregate principal amount
of Outstanding Securities, that the continuance of the Depository System is no
longer in their best interest;
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Physical Securities shall be issued and the Trustee must notify the Depository, for and on behalf
of Participants and Beneficial Owners, of the availability through the Depository of Physical
Securities. The Depository will then surrender the Global Certificates along with written
instructions to the Trustee as to the Participants in whose names the Physical Securities are to be
registered and the authorized denominations of the Physical Securities to be registered in the
Central Security Register in the name of each such Participant.
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Section 3.14. Termination of Depository
Notwithstanding any provision of this Indenture, the Corporation and the Trustee may elect to
terminate the arrangements with the Depository with respect to Securities of any series for any
reason and appoint a successor Depository. Upon such termination and appointment, the Depository
shall surrender the Global Certificates to the Registrar and provide same with written information
on the interests of Participants in the Securities represented by such Global Certificates. Upon
receiving such information, the Registrar shall authenticate and deliver replacement Global
Certificates in accordance therewith.
Section 3.15. Dealings with the Depository
(1) The Corporation and the Trustee acknowledge that, subject to and in accordance with
the rules and procedures of the Depository as at the date hereof, each Participant must look
solely to the Depository through its paying agent service, for so long as the Depository is
the registered Holder of Global Certificates, for its share of each payment made by or on
behalf of the Corporation to the registered Holder of the Global Certificates, and each
Beneficial Owner must look solely to Participants for its share of such payments. Provided
that the Corporation has made such payments in respect of the Global Certificates, no
person, including any Participant, shall have any claim against the Corporation in respect
of payments due on such Global Certificates and the obligations of the Corporation shall be
discharged by payment to the Trustee or the Paying Agent in respect of each amount so paid.
(2) The Depository shall be responsible for the creation and maintenance of the book
entries and the accounts of its Participants with an interest in the Securities represented
by Global Certificates. The Corporation and the Trustee understand that, if so requested by
the Trustee or the Corporation, the Depository will deliver to the requesting party a
certified list of Participants (the Participants List) as at the date requested by such
party showing the name and address of each Participant together with the aggregate principal
amount of such Participants interest in such Securities and that, for so long as interests
in Securities are represented by one or more Global Certificates, the Depository shall, upon
the reasonable request of the Trustee or the Corporation from time to time, deliver to such
requesting party a copy of the then current Participants List and such additional
information as the Trustee or the Corporation may reasonably request. The Corporation and
the Trustee shall be entitled to rely upon all such information provided by the Depository
to the Corporation and the Trustee.
(3) The Corporation understands that the Depository acts as the agent and depository
for the Participants and neither the Corporation nor the Trustee assume any liability for:
(a) any aspect of the records relating to the beneficial ownership of or beneficial interest
in the Securities held by the Depository or the payments relating thereto; (b) maintaining,
supervising or reviewing any records relating to the Securities held by the Depository; or
(c) any advice or representation made by or with respect to the Depository and those
contained herein and relating to the rules governing the Depository or any action to be
taken by the Depository or at the direction of its Participants.
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Section 3.16. Payments of Principal and Interest During Depository System
(1) As payments in respect of principal and premium, if any, and interest, if any, on
the Securities represented by the Global Certificate(s) become due, the Corporation shall
(except in cases of payments at Maturity which may, at the option of
the Corporation, be made only upon presentation and surrender of the Global
Certificate(s)), on the applicable Interest Payment Date or at Maturity, as the case may be,
at the option of the Corporation:
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(a)
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deliver or cause to be delivered to the principal office of the Trustee or the
Paying Agent in the City of Montréal, a cheque for the amount of such payment (less any
tax required to be deducted, if any) payable on such Interest Payment Date or Maturity,
to the order of the Trustee or the Paying Agent and negotiable at par; or
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(b)
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provide to the Trustee or the Paying Agent such payment by electronic funds
transfer (less any tax required to be deducted, if any), on or before 10:00 a.m. on the
applicable Interest Payment Date or Maturity; or
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(c)
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deliver or cause to be delivered to the principal office of the Depository in
the City of Montréal, a cheque for the amount of such payment (less any tax required to
be deducted, if any) payable on such Interest Payment Date or Maturity, to the order of
the Depository and negotiable at par; or
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(d)
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provide to the Depository such payment by electronic funds transfer (less any
tax required to be deducted, if any), on or before 11:00 a.m. on the applicable
Interest Payment Date or Maturity;
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provided that the Corporation and the Trustee or Depository, as the case may be, may agree to an
alternate method of payment by the Corporation to the Trustee or the Paying Agent or to the
Depository, as the case may be.
(2) For so long as the Depository is the registered holder of the Global
Certificate(s), the Trustee or the Paying Agent shall, upon receipt of any payment from the
Corporation on the applicable Interest Payment Date or Maturity pursuant to paragraph (1) of
this Section:
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(a)
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forthwith deliver to the Depository, as the registered holder of Global
Certificate(s), a cheque payable on such Interest Payment Date or Maturity; or
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(b)
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provide payment to the Depository, as the registered holder of Global
Certificate(s), by electronic funds transfer on or before 11:00 a.m. on such Interest
Payment Date or Maturity;
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for all amounts due in respect of such principal and interest on the Securities represented by the
Global Certificate(s) for credit by the Depository to Participants accounts, provided that the
Trustee or the Paying Agent and the Depository may agree to an alternate method of payment by the
Trustee or the Paying Agent to the Depository (including, without limitation, payment through the
facilities of the Depository).
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ARTICLE FOUR
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture
Subject as hereinafter in this Section provided, this Indenture shall cease to be of further
effect and the Trustee, on demand of and at the expense of the Corporation, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all 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 3.07 and (ii) Securities money for whose payment has
theretofore been deposited in trust or held in trust by the Corporation and
thereafter repaid to the Corporation or discharged from such trust, as provided in
Section 10.03) have been delivered to the Registrar cancelled or for cancellation;
or
(B) the Corporation has deposited, or caused to be deposited, or made due
provision as hereinafter provided for the payment of, an amount (in cash or, in the
case of due provision, by way of securities or instruments as hereinafter in this
Section provided) sufficient to pay the entire indebtedness on the Securities (other
than Securities referred to in sub-clauses (i) and (ii) of Clause (A)) not
theretofore delivered to the Registrar cancelled or for cancellation, whether or not
the same has become due and payable, for principal and interest, if any, to the date
of such deposit (in the case of Securities which have become due and payable), or to
the Stated Maturity, as the case may be, any such amount to be deposited with the
Trustee or the Paying Agent as trust funds in trust for the purpose of such payment
and discharge;
(2) the Corporation has paid or caused to be paid, or made due provision as hereinafter
provided for the payment of, all other sums payable hereunder by the Corporation; and
(3) the Corporation 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Corporation to the Trustee under Section 6.06 shall survive.
For the purposes of clause (B) in paragraph 1 and notwithstanding the satisfaction and
discharge of this Indenture, the rights of registration, registration of transfer or exchange of
Securities herein expressly provided for shall survive the satisfaction and discharge of this
Indenture until the earlier of a) all Securities theretofore authenticated and delivered (other
than as referred to in sub-clauses (i) and (ii) of clause (A) in paragraph 1) have been
delivered to the Registrar cancelled or for cancellation and b) all such Securities not
theretofore
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delivered to the Registrar cancelled or for cancellation have become due and payable
and for whose payment moneys in the necessary amount have been theretofore deposited with the
Trustee or the Paying Agent as provided in clause (B) of paragraph 1.
For the purposes of this Section 4.01, the Corporation shall be deemed to have made such due
provision for payment if it shall have deposited or caused to be deposited with the Trustee or the
Paying Agent securities issued or guaranteed by the Government of Canada or by any Province of
Canada or any other securities or instruments acceptable to the Trustee or the Paying Agent, the
proceeds from which will provide moneys which will be sufficient to pay the indebtedness referred
to in clause (B) of paragraph 1, and all other moneys, if any, payable hereunder by the
Corporation.
Section 4.02. Application of Trust Funds
All securities, instruments or moneys deposited with the Trustee or the Paying Agent pursuant
to Section 4.01 shall, subject to the provisions of the last paragraph of Section 10.03, be held in
trust and applied by it, in accordance with the provisions of the Securities, to the payment to the
Holders of the Securities for whose payment or redemption such securities, instruments or moneys
have been deposited with the Trustee or the Paying Agent, of all sums due and to become due thereon
for principal and interest, if any; but such securities, instruments or moneys need not be
segregated from other funds except to the extent required by law or by the Corporation.
ARTICLE FIVE
Remedies
Section 5.01. Events of Default
Event of Default, wherever used herein means any one of the following events:
(1) default in the payment of the principal of or premium (if any) on any Security at
its Maturity or otherwise and any such default shall have continued for a period of five
days;
(2) default in the payment of any instalment of interest upon any Security at its
Maturity and any such default shall have continued for a period of 90 days;
(3) default in the payment of any purchase or sinking fund, amortization fund or
analogous fund instalment on any Security as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days;
(4) default shall be made by the Corporation in the performance or observance of any
other of the covenants, agreements or conditions on its part in this Indenture or any
indenture supplemental hereto or in the Securities contained and such default shall have
continued for a period of 90 days after written notice to the Corporation by the Trustee
specifying such default and requiring it to be remedied and stating that such a notice is a
Notice of Default hereunder or after written notice to the
Corporation and to the Trustee by the Holders of not less than 25% in principal amount
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of the Outstanding Securities (excluding Securities of any series not entitled to the
benefits of such covenant, agreement or condition);
(5) the Corporation shall make an assignment for the general benefit of creditors or
shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court
having jurisdiction for the appointment of a receiver, trustee, liquidator or sequestrator
of, or for, the Corporation or any substantial portion of the property of the Corporation;
or the Corporation shall commence any proceeding relating to the Corporation or any
substantial portion of the property of the Corporation under any insolvency reorganization,
arrangement, or readjustment of Debt, dissolution, winding-up, adjustment, composition or
liquidation law or statute of any jurisdiction, whether now or hereafter in effect
(hereinafter in this Subsection (5) called Proceeding); or if there shall be commenced
against the Corporation any Proceeding and an order approving such Proceeding shall be
rendered, or such Proceeding shall remain undischarged for a period of 60 days; or a
receiver, trustee, liquidator or sequestrator of, or for, the Corporation or any substantial
portion of the property of the Corporation shall be appointed; or the Corporation by any act
shall indicate consent to or approval of or acquiescence in any Proceeding or the
appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Corporation
or any substantial portion of the property of the Corporation, provided that a resolution or
order for winding-up the Corporation with a view to its consolidation, amalgamation or
merger with another corporation or the transfer of its assets as a whole, or substantially
as a whole, to such other corporation as provided in Section 7.01 shall not make the rights
and remedies herein enforceable under this Subsection (5) if such last-mentioned corporation
shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days
from the passing of the resolution or the date of the order, comply with the conditions to
that end stated in Section 7.01; or
(6) an event or events of default, as defined in any one or more indentures or
instruments evidencing, or under which the Corporation has at the time outstanding, in the
aggregate indebtedness for borrowed money in excess of 5% of the aggregate principal amount
of all outstanding indebtedness for borrowed money of the Corporation, shall happen and be
continuing and (i) shall consist of a failure to make any payment of principal at maturity
or (ii) shall have resulted in the acceleration of such indebtedness so that the same shall
be or become due and payable prior to the date on which the same would otherwise have become
due and payable; provided, however, that if such event or events of default under such
indentures or instruments shall be remedied or cured by the Corporation or waived by the
holders of such indebtedness, then the event of default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Securityholders and any acceleration of
maturity hereunder consequent thereon shall be deemed rescinded and annulled unless any
judgment or decree for the payment of moneys due hereunder shall have theretofore been
obtained or entered; and provided, further, that, subject to the provisions of Section 5.03
and Section 6.02, the Trustee shall not be charged with knowledge of any such event of
default unless written notice thereof shall have been given to the Trustee by the
Corporation, by the holder or an agent of the holder of any such indebtedness, by
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the
Trustee then acting under any indenture or other instrument under which such event of
default shall have occurred, or by the Holders of not less than 25% in the aggregate
principal amount of the Securities at the time outstanding.
Section 5.02. Acceleration of Maturity; Rescission and Annulment
If an Event of Default occurs and is continuing, then and in every such case the Trustee may,
in its discretion and shall, if so requested by the Holders of not less than 25% in principal
amount of the Outstanding Securities, declare the principal of all the Securities to be due and
payable immediately, by a notice in writing to the Corporation, and upon any such declaration such
principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the moneys due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of more than 50% in principal amount of the Outstanding Securities
may, by instrument in writing delivered to the Corporation and the Trustee, rescind and annul such
declaration and its consequences (provided that if the Event of Default in respect of which
acceleration has been declared pursuant to this Section 5.02 relates to a covenant applicable to
one or more particular series of Securities, the declaration of acceleration may be rescinded and
annulled by the Holders of more than 50% in principal amount of the Outstanding Securities of such
series), if:
(1) the Corporation has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue instalments of interest, if any, on all Securities,
(B) the principal of any Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne, if any, by
the Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue instalments of interest, if any, at the rate borne by the 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, other than the non-payment of the principal of Securities
which have become due solely by such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
(1) Subject to the provisions of Section 5.02 and to the provisions of any
Extraordinary Resolution that may be passed by the Securityholders, in case the Corporation
shall fail to pay to the Trustee on demand following a declaration made by the Trustee
pursuant to Section 5.02, the principal of and premium, if any, as aforesaid and interest,
if any, on all the Securities then Outstanding, together with any other amounts due under
this Indenture, the Trustee may in its discretion and shall, upon the request in writing of
the Holders of not less than 25% in principal amount of the Outstanding Securities and upon
being indemnified to its reasonable satisfaction against all costs, expenses and liabilities
to be incurred, proceed to enforce the rights of the Trustee and the Holders of Securities
by any action, suit, remedy or proceeding authorized or permitted by law or by equity
(either by legal proceeding or otherwise).
(2) Upon the exercising or taking by the Trustee of any such remedies, whether or not a
declaration and demand have been made pursuant to Section 5.02, the principal of, premium
on, if any, and interest on, if any, all Securities then Outstanding and the other moneys
payable under Section 5.02 shall forthwith become due and payable to the Trustee as though
such a declaration and a demand therefor had actually been made.
(3) Except as provided by applicable law, no delay or omission of the Trustee or of the
Holders of Securities to exercise any remedy referred to in paragraph (1) of this Section
shall impair any such remedy or shall be construed to be a waiver of any default under this
Indenture or acquiescence therein.
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Section 5.04. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Corporation or the property of the Corporation, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the Corporation for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
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(i)
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to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders of the Securities allowed in such judicial proceeding, and
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(ii)
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to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Securityholder to make such payments to the
Trustee, and if the Trustee shall so consent, to the making of such payments directly to the
Holders of the Securities and to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.06.
Subject to Article Seven, nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security 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 such Holder
in any such proceeding.
Section 5.05. 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 on behalf of the Holders of Securities, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the rateable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
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Section 5.06. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, if any, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.06; and
SECOND: To the payment of the amount then due and unpaid upon the Securities for principal and
interest, if any, in respect of which or for the benefit of which such money has been collected,
rateably, without preference or priority of any kind, according to the amounts due and payable on
such Securities, for principal and interest, if any, respectively.
Section 5.07. Limitation on Suits
No Holder of any Security shall have any right to institute against the Corporation any
proceeding, judicial or otherwise, with respect to this Indenture or any Security, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) an Event of Default shall have occurred and be continuing and such Holder shall
have previously given written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(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 an Extraordinary Resolution;
it being understood and intended that no one or more Holders of Securities shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this Indenture or any
Security to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain
or to seek to obtain priority or preference over any other such Holder or to enforce any right
under this Indenture or any Security, except in the manner herein provided and for the equal and
rateable benefit of all the Holders of the Securities.
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Section 5.08. Restoration of Rights and Remedies
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right
or remedy under this Indenture or under any Security 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 the Corporation, the Trustee and the Holders of such Securities shall,
subject to any determination in such proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of the Trustee and such Holders
shall continue as though no such proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative
Except as provided in the last paragraph of Section 3.07, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities 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 5.10. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as
the case may be.
Section 5.11. Control by Securityholders
The Securityholders shall have the right, by way of Securityholders Resolution, 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, provided that
(1) such direction shall not be in conflict with any rule of law or this Indenture,
(2) the Trustee shall not determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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Section 5.12. Waiver of Past Defaults
The Securityholders, by way of Extraordinary Resolution, may on behalf of the Holders of all
the Securities waive any past default hereunder or under the Securities and its consequences
(provided that if such default relates to a covenant applicable to one or more particular series of
Securities, the Holders of such Securities may waive such default by an Extraordinary Resolution
made by the Securityholders of such series).
Upon any such waiver, such default shall cease to exist, and any Event of Default arising from
such default 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 5.13. 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 any Security, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defences made by such party
litigant.
ARTICLE SIX
The Trustee
Section 6.01. Certain Duties and Responsibilities
(a)
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The Trustee shall in the exercise of such of the rights and powers vested in it by, and in
the performance of its duties under, this Indenture, act honestly and in good faith with a
view to the best interests of the Holders of the Securities and shall exercise the care,
diligence and skill of a reasonably prudent trustee.
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(b)
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The Trustee shall not be liable for any act, or omission or failure in the exercise of such
rights or powers or in the performance of such duties if in doing so it has relied in good
faith upon statements contained in any Certified Resolution, Corporation Request, Corporation
Order, Officers Certificate, opinion of Counsel or in any other statutory declaration,
certificate, opinion or report that complies with this Indenture or with applicable law.
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(c)
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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 wilful misconduct,
except that, subject to any applicable provision of law,
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(1) this Subsection shall not be construed to limit the effect of Subsections (a) and
(b) of this Section;
(2) 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 directions set forth in an Extraordinary
Resolution relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising or refraining from the exercise of any trust
or power conferred upon the Trustee, under this Indenture; and
(3) 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.
(d)
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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.
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Section 6.02. Certain Rights of Trustee
Except as otherwise provided in Section 6.01 or as may be required by applicable law:
(a)
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the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
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(b)
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any request or direction of the Corporation mentioned herein shall be sufficiently evidenced
by a Corporation Request or Corporation Order and any resolution of the Directors may be
sufficiently evidenced by a Certified Resolution;
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(c)
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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;
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(d)
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the Trustee may consult with counsel and the written advice of such counsel or any opinion of
Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(e)
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the Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any of the Holders of Securities pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
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(f)
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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, coupon 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
Corporation, personally or by agent or attorney; and
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(g)
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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.
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Section 6.03. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities (other than the description of the
Trustee, the Registrars certificate of authentication (if the Trustee acts as Registrar) and all
references to and descriptions of the Depository and the Depository System) shall be taken as the
statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities or as to the accuracy of the descriptions of the Depository and the Depository System.
The Trustee shall not be accountable for the use or application by the Corporation of Securities or
the proceeds thereof.
Section 6.04. May Hold Securities
The Trustee, any Paying Agent, any Registrar or any other agent of the Corporation may, in its
own right or in any other capacity, become the owner or pledgee of Securities and may, subject to
the provision of any law which may at the time be applicable, otherwise deal with the Corporation
with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Subject to the provisions of any law which may at the time be applicable, the Trustee may act
as trustee under or as any other party to any indenture or agreement to which the Corporation may
be a party or in which the Corporation may have an interest in the same manner as if it were not
Trustee hereunder.
Section 6.05. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law or by the Corporation. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with the Corporation.
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Section 6.06. Compensation and Reimbursement
The Corporation 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 expenses and disbursements of its agents, consultants and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to 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 acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
Section 6.07. Disqualification; Conflicting Interests
(a)
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The Trustee represents and warrants that it is not aware of any material conflict of interest
between its role as Trustee hereunder and its role in any other capacity.
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(b)
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The Trustee shall, within 90 days after it becomes aware that any material conflict exists
between its role as Trustee hereunder and its role in any other capacity, either eliminate
such conflict of interest or resign in the manner and with the effect specified in this
Article.
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Section 6.08. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be a corporation incorporated
under the laws of Canada or a Province thereof and authorized to carry on the business of a trust
company in the Provinces of Québec and Ontario and having a combined capital and surplus of at
least $5,000,000, and having an office in the City of Montréal and in the City of Toronto. If such
corporation publishes financial statements at least annually, 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 financial statements so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect specified in this Article.
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Section 6.09. Resignation and Removal; Appointment of Successor
(a)
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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 under Section 6.10.
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(b)
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The Trustee may resign at any time by giving written notice thereof to the Corporation. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee
within 90 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.
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(c)
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The Trustee may be removed at any time by an Extraordinary Resolution delivered to the
Trustee and to the Corporation.
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(d)
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If at any time:
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(1) the Trustee shall fail to comply with Section 6.07(b) after written request
therefor by the Corporation (in the form of a Corporation Request) or by any Securityholder
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 6.08 and shall fail to resign
after written request therefor by the Corporation (in the form of a Corporation Request) or
by any such Securityholder, 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
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Corporation by a Certified Resolution may remove the Trustee, or
(ii) subject to Section 5.13, any Securityholder 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.
(e)
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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, the Corporation, by a Certified Resolution,
shall promptly appoint a successor Trustee who shall comply with the applicable provisions of
Section 6.10. If, within 12 months after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by an Extraordinary
Resolution delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable provisions of Section 6.10, become the successor Trustee and supersede any
successor Trustee appointed by the Corporation. If no successor Trustee shall have been
appointed by the Corporation or the Securityholders and accepted appointment in the manner
required by Section 6.10, any
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Securityholder 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 appointment of the successor Trustee.
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(f)
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The Corporation shall give notice of each resignation and each removal of the Trustee and
each appointment of a successor Trustee to the Securityholders in accordance with Section 1.05
and each such notice shall include the name and address of the offices of the successor
Trustee in the City of Montréal and in the City of Toronto.
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Section 6.10. Acceptance of Appointment by Successor
Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Corporation and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Corporation (in the form of a
Corporation Request) or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of
any such successor Trustee, the Corporation shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
Section 6.11. Merger or Consolidation
Any corporation into which the Trustee may be amalgamated, or any corporation resulting from
any amalgamation to which the Trustee shall be a party, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by amalgamation, merger 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.
Section 6.12. Fondé de pouvoir
To the extent the Trustee acts as the
fondé de pouvoir
(holder of the power of attorney) for
the Holders of the Securities and to the extent necessary or desirable for the purposes of this
Indenture, each Holder of Securities by receiving and holding same accepts and confirms the
appointment of the Trustee as
fondé de pouvoir
(holder of the power of attorney) of such Holder to
the extent necessary for the purposes hereof and in accordance with and subject to the provisions
hereof.
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To the extent necessary and for greater certainty (but without in any way detracting from
custom and usage applicable with regards to the relationship between the Corporation, the Trustee
and the Securityholders hereunder) and subject to any applicable law of public order, it is hereby
agreed as follows with regards to the Trustee so acting as
fondé de pouvoir
(holder of the power of
attorney) for the Securityholders hereunder and each Holder of Securities by receiving and holding
same agrees with the Corporation and the Trustee that:
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(a)
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notwithstanding any other provision hereof and except as may be otherwise set
forth in an Extraordinary Resolution or other Securityholders Resolution, resolution,
written instrument, request or direction of any of the Holders of Securities pursuant
to this Indenture, relating thereto, no Securityholder shall be liable to third parties
for acts performed by the Trustee (or any other person appointed by the Trustee to
perform all or any of its rights, powers, duties, trusts, obligations or
responsibilities hereunder) during the exercise of its rights, powers and trusts and
the performance of its duties, obligations and responsibilities under this Indenture or
for injury caused to such parties by the fault of the Trustee (or any such person), or
for contracts entered into in favour of such parties, during such performance and the
Trustee (or any such person) alone shall be so liable subject to any rights or
recourses which the Trustee (or any such person) may have hereunder or under any
applicable law against the Corporation or any other person (other than a
Securityholder) in connection with any such liability;
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(b)
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except as otherwise expressly provided herein or in an Extraordinary Resolution
or other Securityholders Resolution, resolution, written instrument, request or
direction of any of the Holders of Securities pursuant to this Indenture, relating
thereto, the Trustee shall not be entitled to receive from the Securityholders any
remuneration or compensation for any services rendered by the Trustee hereunder or
reimbursement of any costs, expenses, liabilities, disbursements or advances incurred
or made by the Trustee in accordance with any provision of this Indenture or interest
thereon;
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(c)
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notwithstanding any other provision hereof and except as may be otherwise set
forth in an Extraordinary Resolution or other Securityholders Resolution, resolution,
written instrument, request or direction of any of the Holders of Securities pursuant
to this Indenture, relating thereto, no Securityholder shall be liable to compensate
the Trustee for any injury suffered by it by reason of the performance of its rights,
powers, duties, trusts, obligations or responsibilities hereunder subject to any rights
or recourses which the Trustee may have hereunder or under any applicable law against
the Corporation or any other person (other than a Securityholder) in connection with
such injury;
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(d)
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neither the death nor bankruptcy of a Securityholder shall terminate the
Trustees rights, powers, duties, trusts, obligations or responsibilities hereunder
with respect to the Securities held by such Securityholder which shall continue to
apply in favour of the Holder or Holders who have acquired such Securities from such
deceased or bankrupt Securityholder;
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(e)
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the bankruptcy of the Trustee shall not terminate its rights, powers, duties,
trusts, obligations or responsibilities hereunder provided that such rights, powers,
duties, trusts, obligations and responsibilities are assumed by a successor Trustee
appointed in accordance with the provisions of Section 6.09;
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(f)
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so long as any Securities remain Outstanding, (i) each Securityholder hereby
renounces to its right to revoke any mandate relationship created between such Holder
and the Trustee hereunder and (ii) the Trustee hereby agrees that it will not revoke
any such mandate relationship except through a resignation pursuant to and in
compliance with the provisions of Section 6.09; and
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(g)
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except as otherwise expressly provided herein or in a Extraordinary Resolution
or other Securityholders Resolution, resolution, written instrument, request or
direction of any of the Holders of Securities pursuant to this Indenture, relating
thereto, the Trustee shall not be obliged to render any account to the Securityholders
nor return to the Securityholders any amounts which it has received in the performance
of its rights, powers, duties, trusts, obligations and responsibilities hereunder nor
pay any interest to the Securityholders on such amounts.
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ARTICLE SEVEN
Consolidation, Merger, Conveyance or Transfer
Section 7.01. Corporation May Consolidate, etc., only on Certain Terms
The Corporation shall not consolidate with, amalgamate with or merge into any other
corporation or convey or transfer its properties and assets as a whole or substantially as a whole
to any Person, unless:
(1) the corporation formed by such consolidation or amalgamation or into which the
Corporation is merged or the Person which acquires by operation of law or by conveyance or
transfer the properties and assets of the Corporation as a whole or substantially as a whole
shall be a corporation organized and existing under the laws of Canada or any Province or
Territory thereof, and shall (except in any case where such assumption is deemed to have
occurred by the sole operation of law), expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Corporation to be
performed or observed;
(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 Corporation shall have delivered to the Trustee an Officers Certificate and an
opinion of Counsel each stating that such consolidation, merger, amalgamation, conveyance or
transfer and such supplemental indenture, if any, comply with this
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Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 7.02. Successor Corporation Substituted
Upon any consolidation or merger or amalgamation or any conveyance or transfer of the
properties and assets of the Corporation substantially as an entirety in accordance with Section
7.01, the successor corporation formed by such consolidation or amalgamation or into which the
Corporation is merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Corporation under this Indenture
with the same effect as if such successor corporation had been named as the Corporation herein;
provided, however, that no such conveyance or transfer shall have the effect of releasing the
Person named as the Corporation in the first paragraph of this instrument or any successor
corporation which shall theretofore have become such in the manner prescribed in this Article from
its liability as obligor on any of the Securities unless such conveyance or transfer is followed by
the complete liquidation of the Corporation.
ARTICLE EIGHT
Supplemental Indentures
Section 8.01. Execution of Supplemental Indentures
The Corporation, when authorized by a Certified 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) for the benefit of the Holders of the Securities to provide for any additional
covenants, events of default or other obligations of the Corporation or any security for or
guarantee of the Securities or to surrender any right or power herein conferred upon the
Corporation; or
(2) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such action pursuant to this paragraph (2) shall
not, in the opinion of the Trustee, adversely affect the rights of the Holders of the
Securities in any material respect; or
(3) to modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under any applicable law of
Canada or of any Province or Territory thereof heretofore or hereafter enacted; or
(4) making any additions to, deletions from or alterations of the provisions of this
Indenture which the Corporation may deem necessary or advisable in order to facilitate the
sale of the Securities and which, in the opinion of the Trustee, do not adversely affect the
rights of the Holders of the Securities, or any series thereof then Outstanding in any
material respect, including, without limiting the generality of the
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foregoing, such additions, deletions and alterations, including provision for the
appointment of an additional Trustee or a co-Trustee in any jurisdiction, as would be
required to comply with the provisions relating to trust indentures contained in the
Canada
Business Corporations Act
, securities acts or similar legislation in any jurisdiction in
which the Corporation may desire to sell the Securities; or
(5) as required by the provisions of Section 7.01(1); or
(6) to give effect to any Extraordinary Resolution; or
(7) adding to or altering the provisions hereof in respect of the registration and
transfer of Securities, making provision for the issue of Securities in forms or
denominations other than those herein provided for and for the exchange of Securities of
different forms and denominations, and making any modifications in the forms of the
Securities which, in the opinion of the Trustee, do not affect the substance thereof; or
(8) for any other purpose not inconsistent with the terms of this Indenture, provided
that, in the opinion of the Trustee, the rights of the Trustee or of the Holders of the
Securities are not adversely affected in any material respects.
Section 8.02. Rights of Trustee Upon Execution of Supplemental Indentures
In executing, or accepting the additional trusts and obligations created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts and obligations
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, an opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustees own rights,
duties or immunities under this Indenture or otherwise.
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Section 8.03. 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 8.04. 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 Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Corporation shall so determine by Certified Resolution, new Securities so modified as to conform,
in the opinion of the Trustee, to any such supplemental indenture may be prepared and executed by
the Corporation and authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE NINE
Meetings of Holders of Securities
Section 9.01. Purposes for Which Meetings May Be Called
A meeting of Holders of Securities may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other action authorized by this Indenture to be made, given or taken by Holders of
Securities, including for the passing of a resolution as a Securityholders Resolution or an
Extraordinary Resolution.
Section 9.02. Powers Exercisable by Extraordinary Resolution
A meeting of the Securityholders shall, in addition to all other powers conferred upon them by
any other provisions of this Indenture or by law, have the following powers, exercisable from time
to time by resolution passed as an Extraordinary Resolution:
(1) power to sanction any scheme for the reconstruction or reorganization of the
Corporation or for the consolidation, amalgamation or merger of the Corporation with any
other entity or for the transfer of the undertaking and assets of the Corporation as a whole
or substantially as a whole, provided that no such sanction shall be necessary for a
reconstruction, reorganization, consolidation, amalgamation, merger or transfer under the
provisions of Article Seven;
(2) power to require or authorize the Trustee to exercise or refrain from exercising
any trust or power conferred upon it by this Indenture or to waive any default, other than
that provided in Section 5.02, on the part of the Corporation, upon such terms as may be
decided upon;
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(3) power to remove the Trustee from office and to appoint a new Trustee or Trustees;
(4) power to sanction any change whatsoever of any provision of the Securities or of
this Indenture and any modification, alteration, abrogation, compromise, or arrangement of
or in respect of the rights of the Securityholders against the Corporation, whether such
rights shall arise under the provisions of this Indenture or otherwise;
(5) power to sanction the exchange of the Securities for or the conversion of such
Securities into shares, bonds, debentures or other securities of the Corporation or of any
corporation or proposed corporation;
(6) power to assent to any compromise or arrangement by the Corporation with any
creditor, creditors or class or classes of creditors or with the holders of any shares or
other securities of the Corporation, provided that no such assent shall be required in
respect of any compromise or arrangement made by the Corporation in the ordinary course of
its business;
(7) power to authorize the Trustee, in the event of a curator or a liquidator being
appointed, for and on behalf of the Securityholders, and in addition to any claim or Debt
proved or made for its own account as Trustee under this Indenture, to file and prove a
claim or Debt against the Corporation and its property for an amount equivalent to the
aggregate amount which may be payable in respect of the Securities and to vote such claim or
Debt at meetings of creditors and generally to act for an on behalf of the Securityholders
in such proceedings as such resolution passed as an Extraordinary Resolution may provide;
(8) power to restrain any Holder of any Securities from taking or instituting any suit,
action or proceeding against the Corporation for the purpose of enforcing payment of the
principal of and premium on, if any, or interest on, if any, such Securities or for the
execution of any trust or power under this Indenture or for the appointment of a liquidator,
receiver or receiver and manager, or trustee in bankruptcy, or to have the Corporation wound
up or for any other remedy under this Indenture and to direct such Holder of any Securities
to waive any default by the Corporation on which any suit or proceeding is founded;
(9) power to direct any Person bringing any action, suit or proceeding and the Trustee
to waive the default in respect of which such action, suit or other proceeding shall have
been brought;
(10) power to appoint a committee with power and authority (subject to such
limitations, if any, as may be prescribed in the resolution), to exercise, and to direct the
Trustee to exercise, on behalf of the Securityholders, such of the powers of the
Securityholders which are exercisable by Extraordinary Resolution or Securityholders
Resolution by the Holders of Securities as shall be included in the resolution appointing
the committee; and
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(11) power to amend, alter or repeal any Extraordinary Resolution previously passed or
sanctioned by the Securityholders.
Section 9.03. Call, Notice and Place of Meetings
(a)
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At any time and from time to time, the Trustee may, and the Trustee shall on being served
with a requisition as provided in paragraph (b) of this Section signed on behalf of the
Corporation or by Holders of Securities representing not less than 25% in principal amount of
the Outstanding Securities and upon being indemnified to its reasonable satisfaction by the
Corporation or by the Holders of Securities signing such requisition against the costs which
may be incurred in connection with the calling and holding of such meeting, call a meeting of
Holders of Securities for any purpose specified in Section 9.01 or 9.02. Such meeting shall be
held at such time and at such place in the City of Montréal or the City of Toronto as the
Trustee (or, as provided in Subsection 9.03(b) hereof, in case of its failure to act, the
Corporation or the Securityholders calling the meeting), shall determine. Notice of every
meeting of Holders of Securities, 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 to each Holder
of Outstanding Securities in the manner provided in this Indenture not less than thirty (30)
days prior to the date fixed for the meeting. A copy of such notice shall also be given,
within the same time period in the manner provided in this Indenture, to the Trustee (unless
the meeting has been called by it), and to the Corporation (unless the meeting has been called
by it). It shall not be necessary to specify in the notice of any adjournment of a meeting the
nature of the business to be transacted at the adjourned meeting. The accidental omission to
give such notice to or non-receipt of any such notice by a Securityholder shall not invalidate
any resolution passed at such meeting.
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(b)
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In case at any time the Corporation, pursuant to a Certified Resolution, or the Holders of at
least 25% in principal amount of the Outstanding Securities shall have requested the Trustee
to call a meeting of Holders of Securities for any purpose specified in Section 9.01 or 9.02,
by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee, upon being indemnified to its reasonable satisfaction by the
Corporation or by the Holders of Securities signing such request against the costs which may
be incurred in connection with the calling and holding of such meeting, shall not have either
given the notice of such meeting or made the publication of the notice of such meeting within
thirty (30) days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Corporation, or the Holders of Outstanding
Securities in the amount above specified, as the case may be, may determine the time and the
place in the City of Montréal or the City of Toronto for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph (a) of this
Section.
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Section 9.04. Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders of Securities, a Person shall be (1) a Holder
of one or more Outstanding Securities, or (2) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities by such Holder or Holders.
Subject to Section 9.09, the only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the Corporation and its
counsel.
Section 9.05. Quorum; Action
The Persons entitled to vote at least 25% (50% for the purpose of an Extraordinary Resolution)
in principal amount of the Outstanding Securities 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, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. Notice of the reconvening of such adjourned meeting shall be
given as provided in Section 9.03(a), except that such notice may be given not less than five days
prior to the date on which the meeting is scheduled to be reconvened. The quorum at such adjourned
meeting shall be the Persons then present and entitled to vote thereat and such quorum shall be
expressly stated in such Notice of the reconvening of such adjourned meeting.
At a meeting or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid, any resolution and all matters (except where, pursuant to this Indenture, an
Extraordinary Resolution is required) shall be effectively passed and decided if passed or decided
by the Persons entitled to vote at least 50% in principal amount of Outstanding Securities
represented and voting at such meeting.
Any resolution passed or decision taken at any meeting of Holders of Securities duly held in
accordance with this Section shall be binding on all the Holders of Securities, whether or not
present or represented at the meeting.
Section 9.06. Determination of Voting Rights; Conduct and Adjournment of Meetings
(a)
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Notwithstanding any other provisions of this Indenture, the Trustee and the Person nominated
by the Trustee to act as chairman of the meeting, or either of them, may make such reasonable
regulations as it or he may deem advisable for any meeting or adjourned meeting of Holders of
Securities in regard to proof of the holding of Securities and of the appointment of proxies
and in regard to the appointment and duties of scrutineers, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it or he shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of any Securities shall be proved
in the manner specified in
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Section 1.03 and the appointment of any proxy shall be proved in the manner specified in
said Section 1.03 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank, banker or other Person, wherever situated, acceptable
to the Trustee. Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof specified in said
Section 1.03 or other proof.
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(b)
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The Trustee shall, by an instrument in writing, nominate a chairman of the meeting, unless
the meeting shall have been called by the Corporation or by Holders of Securities as provided
in Section 9.03(b), in which case the Corporation, or the Holders of Securities calling the
meeting, as the case may be, shall in like manner nominate a chairman.
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(c)
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At any meeting each Holder of a Security, whether present in person or represented by proxy,
shall be entitled to one vote for each $1,000 principal amount of Securities held by him;
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 or as the proxy of a Holder of a Security.
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(d)
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Any meeting of Holders of Securities duly called pursuant to Section 9.03 at which a quorum
is present may be adjourned from time to time by a resolution passed at such meeting and the
meeting may be held as so adjourned without further notice.
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Section 9.07. Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of Holders of Securities shall be by
written ballots on which shall be subscribed the signatures of the Holders of Securities or of
their representatives by proxy and such other information as may be required by the regulations
made for the meeting, provided however, that the vote upon any resolution involving matters of a
purely procedural nature may, if required by the regulations made for the meeting, be by way of
show of hands. The chairman of the meeting shall appoint a secretary and may appoint a scrutineer
or scrutineers to act at the meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Securities shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the scrutineers 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 9.03 and, if applicable, Section 9.05. Each copy
shall be signed and verified by the affidavits of the chairman and secretary of the meeting and one
such copy shall be delivered to the Corporation 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.
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Section 9.08. Distribution of Proxy Material to Participants
(1) For purposes of holding a meeting of Securityholders where the Depository System is
in effect, the Trustee shall promptly notify the Depository and obtain therefrom a current
Participants List.
(2) Within five business days of receipt of such information by the Trustee, or within
any shorter delay which might be imposed by a competent regulatory authority, the Trustee
shall contact each Participant on the Participants List by mail to confirm the required
number of copies (the Required Number) of proxy material or other documents relating to
the meeting (the Proxy Material) which the Participant requires for the benefit of
Beneficial Owners. Within ten (10) business days of confirmation by the Participant of the
Required Number, the Trustee shall arrange to have delivered to such Participant the
Required Number of copies of the Proxy Material. It shall be the responsibility of each
Participant on the Participants List to arrange for distribution of the Proxy Material to
the Beneficial Owners. Neither the Corporation nor the Trustee shall assume any liability
for failure by a Participant to distribute the Proxy Material.
(3) The Corporation and the Trustee understand that the Proxy Material will be sent to
the Beneficial Owners not less than twenty-one (21) nor more than fifty (50) days, or such
longer delay as may be prescribed by a competent regulatory authority, before the date of
the meeting.
(4) Failure by a Participant to distribute the Proxy Material to Beneficial Owners
shall not affect the validity of the proceedings to be held at the meeting if notice of the
meeting has been published by the Trustee at least twenty-one (21) days before the holding
of such meeting in an Authorized Newspaper in each of the City of Montréal and the City of
Toronto or if at least 50% in the aggregate principal amount of Outstanding Securities is
represented at the meeting by Holders of Securities or their proxies.
(5) To the extent that an omnibus proxy in form satisfactory to the Corporation has
been delivered by the Depository to the Corporation with respect to the matters to be voted
on at a meeting of Securityholders delegating to Beneficial Owners the right of the
Depository as sole registered Holder of the Global Certificate(s) to vote on the matters
before the meeting, the Corporation will recognize as votes of the registered Holder, votes
expressed in person at the meeting by identified Beneficial Owners and votes expressed by
proxy by identified Beneficial Owners.
Section 9.09. Serial Meetings
(1) If the Corporation wishes to modify or eliminate any provisions of the Terms of any
series of Securities, whether at a meeting or pursuant to any action to be taken or power to
be exercised by instrument in writing, by resolution, or otherwise, or if, in the opinion of
the Trustee, the business to be transacted at any meeting especially affects the rights of
the Holders of any series of Securities in a manner or to an extent
-46-
substantially differing from that in or to which the rights of the Holders of any other
series thereof are affected (as to which an opinion of Counsel shall be binding on all
Securityholders, the Trustee and the Corporation for all purposes of this Indenture), then:
(A) reference to such fact, indicating each series so especially affected, shall be made in
the notice of the meeting and the meeting shall be and is herein called a Serial Meeting;
and
(B) the Holders of Securities of a series so especially affected shall not be bound by any
action taken at a Serial Meeting or by instrument in writing unless in addition to
compliance with the other provisions of this Article:
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(i)
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at such Serial Meeting:
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(I)
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there are present in person or by proxy Holders
of at least 25% (50% for the purpose of an Extraordinary Resolution) in
principal amount of the Outstanding Securities of such series, subject
to the provisions of this Article as to adjourned meetings; and
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(II)
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the resolution is passed by the favourable
votes of the Holders of at least 50% (66 2/3% in the case of an
Extraordinary Resolution) in principal amount of the Outstanding
Securities of such series voted on the resolution; or
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(ii)
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in the case of action taken or power exercised by instrument in
writing, such instrument is signed in one or more counterparts by the Holders
of at least 50% (or such other percentage as may otherwise be required in this
Indenture) in principal amount of the Outstanding Securities of such series.
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(2) If in the opinion of Counsel any business to be transacted at any meeting, or any
action to be taken or power to be exercised by instrument in writing, does not adversely
affect the rights of the holders of Securities of one or more particular series in any
material respect, or the provisions of the Terms of a series of Securities are not proposed
to be modified or eliminated, the provisions of this Section shall apply as if the
Securities of such series were not Outstanding and no notice of any such meeting need to be
given to the Holders of Securities of such series. Without limiting the generality of the
foregoing, a proposal to modify or terminate any covenant or agreement which by its terms is
effective only so long as Securities of a particular series are Outstanding shall be deemed
not to adversely affect the rights of the Holders of Securities of any other series.
(3) A proposal (i) to extend the Maturity of Securities of any particular series or
reduce the principal amount of such Securities or the rate of interest or redemption premium
on such Securities, (ii) to modify or terminate any covenant or agreement which by its terms
is effective only so long as Securities of a particular series are Outstanding, (iii) to
reduce with respect to Holders of Securities of any particular series
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any percentage stated in Sections 9.04 and 9.05, in this Section 9.09, or in the
definitions of Securityholders Resolution or Extraordinary Resolution or (iv) to change the
currency in which the principal of, premium on, if any, or interest on, if any, Securities
of a particular series is payable to another currency or a unit account defined in terms of
the currency of two or more countries, shall be deemed to especially affect the rights of
the Holders of Securities of such series in a manner substantially differing from that in
which it affects the rights of Holders of Securities of any other series, whether or not a
similar extension, reduction, modification or termination is proposed with respect to
Securities of any or all other series.
ARTICLE TEN
Covenants
Section 10.01. Payment of Principal and Interest
The Corporation will duly and punctually pay the principal of, premium (if any), and interest
on the Securities in accordance with the Terms of the Securities and this Indenture.
Section 10.02. Maintenance of Places of Registration
The Corporation will cause the Central Security Register to be maintained by the Registrar at
its principal office in the City of Montréal (or at such other Place of Registration in Canada
maintained by the Registrar as may be requested by the Corporation with the approval of the
Trustee) and, subject as hereinafter in this Section provided, will cause Branch Security Registers
to be maintained by one or more Branch Registrar(s) at each of the other Places of Registration.
The Corporation may at any time and from time to time vary or terminate the appointment of the
Registrar and of any Branch Registrar or appoint other offices or agencies as Branch Security
Registers where Securities may be presented or surrendered for registration, registration of
transfer or exchange; provided however that the Corporation will maintain an office or agency for
all such purposes in each of the Cities of Montréal and Toronto. The Corporation will give prompt
written notice to the Trustee of the location of, or of any change in the location of, any such
office or agency.
The Corporation may appoint a registrar and branch registrars for the purposes of registering
Securities and transfers of Securities, incorporated or organized under the laws of a foreign
jurisdiction, in addition to or in lieu of the Registrar and Branch Registrars appointed pursuant
to this Indenture.
Section 10.03. Money for Security Payments to be Held in Trust
If the Corporation shall at any time act as its own Paying Agent, it will hold in trust for
the benefit of the Holders of such Securities a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Holders or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Corporation shall have one or more Paying Agents, it will, on or prior to each
due date of the principal of or interest on, any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or interest, so becoming due, such sum to be held in trust for the
benefit of the Holders of such Securities, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its action or failure so to act.
The Corporation 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) hold all sums held by it for the payment of the principal of or interest on
Securities in trust for the benefit of the Holders of such Securities until such sums shall
be paid to such Holders or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Corporation in the making of any
payment of principal 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 Corporation may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or by Corporation Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Corporation 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 Corporation
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such moneys.
Subject to any applicable law with respect to the deposit of unclaimed moneys with any public
authority, any moneys deposited with the Trustee or any Paying Agent or then held by the
Corporation, in trust for the payment of the principal of or interest on any Security, and
remaining unclaimed for three years after the date when such principal or interest has become due
and payable, shall be paid to the Corporation on Corporation Request, or (if then held by the
Corporation) shall be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust moneys, and all liability
of the Corporation as trustee thereof, shall thereupon cease.
Section 10.04. Corporate Existence
Subject to Article Seven, the Corporation will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 10.05. Negative Pledge
Subject to the exceptions set forth in Section 10.06, the Corporation will not issue, assume
or guarantee by Debt secured by, and will not after the date of this Indenture secure any
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Debt by, a Mortgage upon any property of the Corporation (whether now owned or hereafter
acquired), without in any such case effectively providing concurrently therewith that the
Securities (together with any other Debt of the Corporation which may then be outstanding and
entitled to the benefit of a covenant similar in effect to this covenant) shall be secured equally
and rateably with such Debt; provided, however, that the foregoing restrictions shall not apply to
Debt secured by:
(1) Purchase Money Mortgages;
(2) Mortgages on property of a corporation existing at the time such corporation is
merged into or consolidated with the Corporation or at the time of a sale, lease or other
disposition to the Corporation of the properties of a corporation as an entirety or
substantially as an entirety;
(3) Mortgages on current assets of the Corporation securing Current Debt of the
Corporation; or
(4) any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Mortgage referred to in paragraphs (1) or (2) above
or any Mortgage existing at the date of this Indenture, provided, however, that the
principal amount of Debt secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the property which secured the
Mortgage so extended, renewed or replaced (plus improvements on such property).
Section 10.06. Additional Permitted Liens
In addition to Mortgages permitted by Section 10.05, the Corporation may issue, assume or
guarantee any Debt secured by or secure after the date of this Indenture any Debt by, a Mortgage
upon any property of the Corporation (whether now owned or hereafter acquired) if, after giving
effect thereto, the aggregate principal amount of Debt secured by Mortgages of the Corporation
permitted only by this Section 10.06 does not at such time exceed 5% of the Net Worth of the
Corporation.
Section 10.07. Waiver of Certain Covenants
The Corporation may omit in any particular instance to comply with any covenant or condition
set forth in this Article Ten, if before or after the time for such compliance the Securityholders
shall, by Extraordinary Resolution, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Corporation and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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Section 10.08. Annual Certificate of Compliance
Within 120 days after the end of each fiscal year of the Corporation, and at any other time if
requested by the Trustee, the Corporation shall furnish the Trustee with an Officers Certificate
stating that, in the course of the performance by the signer of his/her duties as officer of the
Corporation, he/she would normally have knowledge of any default by the Corporation in the
performance of its covenants under this Indenture or of any Event of Default under Article Five and
certifying that the Corporation has complied with all covenants, conditions or other requirements
contained in this Indenture non-compliance with which would, with notification or with the lapse of
time or otherwise, constitute an Event of Default hereunder, or, if such is not the case, setting
forth with reasonable particulars the circumstances of any failure to comply.
In addition, on becoming aware at any time of any Event of Default of the nature specified in
Section 5.01(6), the Corporation will promptly notify the Trustee.
ARTICLE ELEVEN
Redemption of Securities
Section 11.01. Applicability of Article
Redemption and purchase of Securities at the election of the Corporation or otherwise, as
permitted or required by any provision of this Indenture or of the Securities, shall be made in
accordance with such provision and this Article unless otherwise specified in the Corporation Order
setting out the Terms of the Securities to be redeemed.
Section 11.02. Partial Redemption; Notice to Trustee
In case of any redemption at the election of the Corporation of less than all the Securities
of any series, the Corporation shall, at least 45 days prior to the Redemption Date fixed by the
Corporation (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in
advance of such Redemption Date and of the principal amount of Securities of such series to be
redeemed.
Section 11.03. Selection by Trustee of Securities to be Redeemed
If less than all the Securities of a series are to be redeemed, the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of such series not previously called for redemption by such method
as it shall deem equitable and which may provide for the selection for redemption of portions
(equal to $1,000 or a multiple thereof) of the principal of Securities of a denomination larger
than $1,000.
The Trustee shall promptly notify the Corporation in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security which has been
or is to be redeemed only in part, to the portion of the principal of such Security which has been
or is to be redeemed.
Section 11.04. Notice of Redemption
Notice of the proposed redemption shall be given in the manner provided in this Indenture to
each Holder of Securities to be redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Securities of such series to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security, and that interest thereon, if any, shall cease to accrue on and after
said date, and
(5) the place where such Securities are to be surrendered for payment of the Redemption
Price.
Notice of redemption of Securities to be redeemed at the election of the Corporation shall be
given by the Corporation or, at the Corporations request, by the Trustee in the name of and at the
expense of the Corporation.
Section 11.05. Deposit of Redemption Price
On or prior to any Redemption Date, the Corporation shall deposit with the Trustee or with a
Paying Agent (or, if the Corporation is acting as its own Paying Agent, hold in trust as provided
in Section 10.03) an amount of money sufficient to pay the Redemption Price of all the Securities
which are to be redeemed on such Redemption Date.
Section 11.06. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified and on and
after such date (unless the Corporation shall default in the payment of the Redemption Price) such
Securities shall cease to bear interest, if any. Upon surrender of any such Security for redemption
in accordance with such notice, such Security shall be paid by the Corporation at the Redemption
Price, provided, however, that instalments of interest, if any, on Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities,
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registered as such on the relevant Regular Record Date according to their terms and the
provisions of Section 3.08. Interest maturing on or prior to the Redemption Date shall continue to
be payable (but without interest thereon, unless the Corporation shall default in the due payment
or provision for payment thereof) to the Holders thereof according to their terms in the customary
manner.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the
prevailing rate, if any, borne by such Security.
Section 11.07. Securities Redeemed in Part
Any Security which is to be redeemed only in part may, at the option of the Corporation,
(1) be presented to the Registrar or Paying Agent for notation thereon of the payment
as of the Redemption Date of the redeemed portion of the principal thereof, or
(2) be surrendered (with, if the Corporation or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Corporation
and the Registrar duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Corporation shall execute and the Registrar shall authenticate and deliver
to the Holder of such Security, without service charge, a new Security or Securities, of any
authorized denomination or denominations as requested by such Holder in aggregate principal
amount equal to the unredeemed portion of the principal of the Security so surrendered.
Section 11.08. Purchase
At any time and from time to time, the Corporation may, at its option, purchase Securities
(or, while the Depository System is in effect, beneficial interests therein) in the market or by
tender or by private contract at such price or prices and upon such terms and conditions as the
Corporation in its absolute discretion may determine. Notwithstanding the foregoing, any Subsidiary
of the Corporation may purchase Securities at any time in the ordinary course of its business in
dealing with securities, subject to applicable law.
In the event of a purchase of beneficial interests in Securities while the Depository System
is in effect, the amount of the decrease in value of the Global Certificate(s), and the new
principal amount of the Global Certificate(s) shall be evidenced in one of the manners set forth in
Section 11.07, which such adaptations as are necessary, or in such other manner as may be agreed
upon by the Corporation and the Depository.
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Section 11.09. Cancellation of Securities
Subject to Section 11.07, all Securities redeemed or purchased under the provisions of this
Article shall be forthwith delivered to and cancelled by the Registrar and shall not be reissued.
Upon being cancelled, such Securities shall be retained by the Trustee or the Register for 6
years or such other period determined by the Corporation, after which they shall be disposed of as
directed by the Corporation.
ARTICLE TWELVE
Counterparts and Language
Section 12.01. Counterparts
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.
Section 12.02. Language
The parties hereto have expressly requested and agreed that this Trust Indenture be in the
English language. Les parties aux présentes ont expressément requis et convenu que la présente
convention de fiducie soit rédigée en anglais.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
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BELL CANADA
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By:
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/s/ David W. Drinkwater
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CIBC MELLON TRUST COMPANY -
COMPAGNIE TRUST CIBC MELLON
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By:
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/s/ Michel Longpré
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and:
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/s/ Ernestine Reinhold
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-55-
SCHEDULE A
FORM OF PHYSICAL SECURITIES
[English Language Version]
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Certificate No.
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BELL CANADA
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Principal amount/Currency
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(incorporated under the laws of Canada)
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CUSIP No.
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Date of issue:
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Maturity date:
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% DEBENTURE, SERIES
, DUE
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BELL CANADA, for value received, promises to pay to the order of (Registered Holder) at maturity
(or on such earlier date as the principal sum of this Debenture may become payable in accordance
with the terms of the Indenture) the principal sum of (amount/currency) (together with such further
sum, if any, as may be payable by way of premium) upon presentation and surrender of this Debenture
at the principal office of the Registrar in any of the cities of Montréal and Toronto, or at any
other place as may be designated from time to time by Bell Canada, and, if applicable, to pay
interest (less any tax required to be deducted) on the principal amount of this Debenture in
accordance with and subject to the following terms:
Interest rate per annum (if applicable):
Interest payment dates (if applicable):
Other features:
IN WITNESS WHEREOF Bell Canada has caused this Debenture to be executed by its duly authorized
officers and dated as of its date of issue.
BELL CANADA
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Authorized Officer
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Authorized Officer
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(Reverse)
This Debenture is subject to a trust indenture dated as of November 28, 1997 (which indenture,
together with all indentures supplemental thereto, is herein referred to as the Indenture) made
between Bell Canada and CIBC Mellon Trust Company, as Trustee (herein called the Trustee), to
which Indenture reference is expressly made for a statement of the respective rights thereunder of
the holders of Debentures, the Trustee and Bell Canada and of the terms and conditions upon which
the Debentures are, and are to be, authenticated and delivered, all to the same effect as if the
provisions of the Indenture were herein set forth, to all of which provisions the holder of
Debentures by acceptance hereof assents.
Bell Canada may, at any time, purchase for cancellation all or any Debentures in the market or
by tender or by private contract, at any price.
Bell Canada, the Trustee and any agent of Bell Canada or the Trustee may treat the person in
whose name this Debenture is registered as the owner hereof for all purposes whether or not this
Debenture be overdue.
This Debenture shall not become valid or obligatory for any purpose until it shall have been
authenticated by or on behalf of the Registrar appointed pursuant to the Indenture.
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REGISTRARS AUTHENTICATION
Authenticated for and on behalf of Bell Canada
Date of authentication:
[Name of Registrar]
REGISTRAR
FORM OF TRANSFER
FOR VALUE RECEIVED,
hereby assign(s) and transfer(s) unto
the within Debenture, together with the principal
thereof and all accrued interest thereon, if any, by irrevocably constituting and appointing
to
transfer such Debenture on the securities register of Bell Canada, with full power of substitution
in the premises.
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Dated
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In the presence of
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Signature
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Transferees social insurance number (if applicable):
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(French Language Version)
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Certificat n
°
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BELL CANADA
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Capital/monnaie :
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(constituée en vertu des lois du Canada)
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CUSIP no
°
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Date démission :
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Date déchéance :
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DÉBENTURES À
%, SÉRIE
, ÉCHÉANT EN
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BELL CANADA, contre valeur reçue, promet de payer à lordre de (nom du porteur inscrit), à
léchéance (ou à toute date antérieure à laquelle le capital de la présente débenture pourra
devenir payable conformément aux modalités de la convention), la somme en capital de
(montant/monnaie) (ainsi que toute autre somme, sil en est, qui serait payable sous forme de
prime), sur présentation et remise de la présente débenture au bureau principal de lagent chargé
de la tenue des registres dans les villes de Montréal et Toronto, ou à tout autre endroit désigné
de temps à autre par Bell Canada, et, sil y a lieu, de payer les intérêts (moins toute taxe devant
être prélevée, le cas échéant) sur le capital de la présente débenture conformément aux modalités
suivantes et sous réserve de celles-ci :
Taux dintérêt annuel (le cas échéant) :
Dates de paiement des intérêts (le cas échéant) :
Autres caractéristiques :
EN FOI DE QUOI Bell Canada a fait signer la présente débenture par ses dirigeants dûment
autorisés et daté celle-ci en date de son émission.
BELL CANADA
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Dirigeant autorisé
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Dirigeant autorisé
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(Verso)
La présente débenture est assujettie à une convention de fiducie datée du 28 novembre 1997
(laquelle convention, ainsi que toutes les conventions supplémentaires sy rattachant, sont
ci-après désignées la convention) intervenue entre Bell Canada et Compagnie Trust CIBC Mellon, à
titre de fiduciaire (appelée dans les présentes le fiduciaire). Référence est expressément faite
à la convention pour obtenir un énoncé des droits respectifs en vertu de celle-ci des porteurs de
débentures, du fiduciaire et de Bell Canada et des conditions auxquelles les débentures sont et
doivent être authentifiées et livrées, le tout comme si les dispositions de la convention
figuraient dans les présentes, dispositions auxquelles le porteur de débentures consent par
lacceptation des présentes.
Bell Canada peut en tout temps acheter la totalité ou une partie des débentures à des fins
dannulation sur le marché, par appel doffres ou de gré à gré, et ce, à nimporte quel prix.
Bell Canada, le fiduciaire et tout mandataire de Bell Canada ou du fiduciaire peuvent traiter
la personne au nom de laquelle la présente débenture est inscrite comme le propriétaire de celle-ci
à toutes fins, que la présente débenture soit échue ou non.
La présente débenture ne devient pas valide ou obligatoire à quelque fin que ce soit tant
quelle na pas été authentifiée par lagent chargé de la tenue des registres nommé aux termes de
la convention, ou pour son compte.
-60-
AUTHENTIFICATION DE LAGENT CHARGÉ DE
LA TENUE DES REGISTRES
Authentifiée pour le compte de Bell Canada
Date dauthentification:
[Nom de lagent chargé de la tenue des registres]
AGENT CHARGÉ DE
LA TENUE DES REGISTRES
FORMULAIRE DE TRANSFERT
CONTRE VALEUR REÇUE,
vend(ent), cède(ent) et transfère(ent) par les présentes
à
la présente débenture, de même que le
capital de celle-ci et tous les intérêts courus sur celle-ci, sil en est, et constitue(ent) et
nomme(ent) irrévocablement
aux fins du transfert de cette débenture dans le registre des valeurs
mobilières de Bell Canada, avec pleins pouvoirs de substitution à cet égard.
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Date
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En présence de
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Signature
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Numéro dassurance sociale du cessionnaire (sil en est):
-61-
SCHEDULE B
FORM OF GLOBAL CERTIFICATE
[English Language Version]
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Certificate No.
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BELL CANADA
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Principal amount/Currency
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(incorporated under the laws of Canada)
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CUSIP No.
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Date of issue:
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Maturity date:
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% DEBENTURE, SERIES
, DUE
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Unless this Global Certificate is presented by an authorized representative of [Name of Depository]
(the Depository), or its lawful successor, to Bell Canada or the Registrar for registration of
transfer or exchange or for payment, and any Global Certificate issued is registered in any name
used by the Depository from time to time as its nominee for purposes of the depository system (and
any payment is made to the Depository, or to such other entity as requested by an authorized
representative of the Depository),
any transfer, pledge or other use hereof for value or otherwise
by or to any person is wrongful since the registered owner hereof, the nominee of the Depository,
has an interest herein.
This Debenture is a Global Certificate within the meaning of the Indenture hereinafter referred to
and is registered in the name of the nominee of the Depository. Except as otherwise provided in the
Indenture, this Global Certificate may be transferred in whole but not in part, only to another
nominee of the Depository or to a successor Depository or to a nominee of such successor
Depository.
BELL CANADA, for value received, promises to pay to the order of (Registered Holder) at maturity
(or on such earlier date as the principal sum of this Debenture may become payable in accordance
with the terms of the Indenture) the principal sum of (amount/currency) (together with such further
sum, if any, as may be payable by way of premium) upon presentation and surrender of this Debenture
at the principal office of the Registrar in any of the cities of Montréal and Toronto, or at any
other place as may be designated from time to time by Bell Canada, and, if applicable, to pay
interest (less any tax required to be deducted) on the principal amount of this Debenture in
accordance with and subject to the following terms:
-62-
Interest rate per annum (if applicable):
Interest payment dates (if applicable):
Other features:
IN WITNESS WHEREOF Bell Canada has caused this Debenture to be executed by its duly authorized
officers and dated as of its date of issue.
BELL CANADA
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Authorized Officer
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Authorized Officer
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(Reverse)
This Debenture is subject to a trust indenture dated as of November 28, 1997 (which indenture,
together with all indentures supplemental thereto, is herein referred to as the Indenture) made
between Bell Canada and CIBC Mellon Trust Company, as Trustee (herein called the Trustee), to
which Indenture reference is expressly made for a statement of the respective rights thereunder of
the holders of Debentures, the Trustee and Bell Canada and of the terms and conditions upon which
the Debentures are, and are to be, authenticated and delivered, all to the same effect as if the
provisions of the Indenture were herein set forth, to all of which provisions the holders of
Debentures by acceptance hereof assents.
Bell Canada, the Trustee and any agent of Bell Canada or the Trustee may treat the person in
whose name this Debenture is registered as the owner hereof for all purposes whether or not this
Debenture be overdue.
This Debenture shall not become valid or obligatory for any purpose until it shall have been
authenticated by or on behalf of the Registrar appointed pursuant to the Indenture.
-63-
REGISTRARS AUTHENTICATION
Authenticated for and on behalf of Bell Canada
Date of authentication:
[Name of Registrar]
REGISTRAR
FORM OF TRANSFER
FOR VALUE RECEIVED,
hereby assign(s) and transfer(s) unto
the within Debenture, together with the principal
thereof and all accrued interest thereon, if any, by irrevocably constituting and appointing
to
transfer such Debenture on the securities register of Bell Canada, with full power of substitution
in the premises.
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Dated
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In the presence of
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Signature
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Transferees social insurance number (if applicable):
-64-
(French Language Version)
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Certificat n
°
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BELL CANADA
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Capital/monnaie :
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(constituée en vertu des lois du Canada)
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CUSIP no
°
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Date démission :
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Date déchéance :
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DÉBENTURES À
%, SÉRIE
, ÉCHÉANT EN
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À moins que ce certificat global ne soit présenté par un représentant autorisé de [Nom du
dépositaire] (le «dépositaire»), ou de son successeur légitime, à Bell Canada ou à lagent chargé
de la tenue des registres aux fins de linscription de son transfert ou de son échange ou à des
fins de paiement, et à moins que tout certificat global émis ne soit inscrit à un nom utilisé par
le dépositaire de temps à autre à titre de prête-nom aux fins du système de dépositaire (ou quun
paiement ne soit effectué au dépositaire, ou à toute autre personne désignée par un représentant
autorisé du dépositaire),
tout transfert, mise en gage ou autre utilisation du présent certificat
contre valeur ou autrement par ou en faveur de toute personne est illicite puisque le porteur
inscrit du présent certificat, le prête-nom du dépositaire, a un intérêt dans celui-ci.
La présente débenture est un certificat global au sens de la convention mentionnée ci-dessous et
est inscrite au nom du prête-nom du dépositaire. Sous réserve de toute disposition contraire
contenue dans la convention, ce certificat global peut être transféré en totalité mais non en
partie, uniquement à un autre prête-nom du dépositaire, à un successeur du dépositaire ou à un
prête-nom de ce successeur du dépositaire.
BELL CANADA, contre valeur reçue, promet de payer à lordre de (nom du porteur inscrit), à
léchéance (ou à toute date antérieure à laquelle le capital de la présente débenture pourra
devenir payable conformément aux modalités de la convention), la somme en capital de
(montant/monnaie) (ainsi que toute autre somme, sil en est, qui serait payable sous forme de
prime), sur présentation et remise de la présente débenture au bureau principal de lagent chargé
de la tenue des registres dans les villes de Montréal et Toronto, ou à tout autre endroit désigné
de temps à autre par Bell Canada, et, sil y a lieu, de payer les intérêts (moins toute taxe devant
être prélevée, le cas échéant) sur le capital de la présente débenture conformément aux modalités
suivantes et sous réserve de celles-ci :
Taux dintérêt annuel (le cas échéant) :
Dates de paiement des intérêts (le cas échéant) :
Autres caractéristiques :
-65-
EN FOI DE QUOI Bell Canada a fait signer la présente débenture par ses dirigeants dûment
autorisés et daté celle-ci en date de son émission.
BELL CANADA
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Dirigeant autorisé
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Dirigeant autorisé
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(Verso)
La présente débenture est assujettie à une convention de fiducie datée du 28 novembre 1997
(laquelle convention, ainsi que toutes les conventions supplémentaires sy rattachant, sont
ci-après désignées la «convention») intervenue entre Bell Canada et Compagnie Trust CIBC Mellon, à
titre de fiduciaire (appelée dans les présentes le «fiduciaire»). Référence est expressément faite
à la convention pour obtenir un énoncé des droits respectifs en vertu de celle-ci des porteurs de
débentures, du fiduciaire et de Bell Canada et des conditions auxquelles les débentures sont et
doivent être authentifiées et livrées, le tout comme si les dispositions de la convention
figuraient dans les présentes, dispositions auxquelles le porteur de débentures consent par
lacceptation des présentes.
Bell Canada, le fiduciaire et tout mandataire de Bell Canada ou du fiduciaire peuvent traiter
la personne au nom de laquelle la présente débenture est inscrite comme le propriétaire de celle-ci
à toutes fins, que la présente débenture soit échue ou non.
La présente débenture ne devient pas valide ou obligatoire à quelque fin que ce soit tant
quelle na pas été authentifiée par lagent chargé de la tenue des registres nommé aux termes de
la convention, ou pour son compte.
-66-
AUTHENTIFICATION DE LAGENT CHARGÉ DE
LA TENUE DES REGISTRES
Authentifiée pour le compte de Bell Canada
Date dauthentification:
[Nom de lagent chargé de la tenue des registres]
AGENT CHARGÉ DE
LA TENUE DES REGISTRES
FORMULAIRE DE TRANSFERT
CONTRE VALEUR REÇUE,
vend(ent), cède(ent) et transfère(ent) par les présentes
à
la présente débenture, de même que le
capital de celle-ci et tous les intérêts courus sur celle-ci, sil en est, et constitue(ent) et
nomme(ent) irrévocablement
aux fins du transfert de cette débenture dans le registre des valeurs
mobilières de Bell Canada, avec pleins pouvoirs de substitution à cet égard.
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Date
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En présence de
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Signature
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Numéro dassurance sociale du cessionnaire (sil en est):
Exhibit 7.4
Dated as of April 17, 1996
BELL CANADA
and
MONTREAL TRUST COMPANY
COMPAGNIE MONTRÉAL TRUST
Trustee
TRUST INDENTURE
PROVIDING FOR THE ISSUE OF
SUBORDINATED DEBENTURES
TABLE OF CONTENTS
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Section
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Page
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Recitals
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ARTICLE ONE
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Interpretation
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1.01 Definitions
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2
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1.02 Meaning of outstanding for Certain Purposes
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4
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1.03 Interpretation not Affected by Headings, etc
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5
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1.04 Applicable Law
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5
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ARTICLE TWO
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Issue of Debentures
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2.01 Limit of Issue
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6
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2.02 Series 1 Subordinated Debentures
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6
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2.03 Computation of Interest
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6
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2.04 Creation and Issue of Additional Debentures
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6
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2.05 Subordination
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8
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2.06 Debentures to Rank Pari Passu
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8
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2.07 Signing of Debentures
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8
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2.08 Certification by the Trustee or the Registrar
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9
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2.09 Interim Debentures
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9
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2.10 Issue in Substitution for Lost Debentures
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9
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ARTICLE THREE
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Registration, Transfer, Exchange and Ownership of Debentures
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3.01 Fully Registered Debentures
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11
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3.02 Coupon Debentures
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11
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3.03 Transferee Entitled to Registration
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12
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3.04 Exchange of Debentures
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13
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3.05 Charges for Registration, Transfer and Exchange
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13
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3.06 Register Open for Inspection
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13
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3.07 Limitation on Obligation to Effect Transfers or Exchanges
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14
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3.08 Ownership of Debentures and Coupons
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14
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i
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Section
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Page
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ARTICLE FOUR
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Redemption and Purchase of Debentures
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4.01 Redemption of Debentures
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16
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4.02 Places of Payment
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16
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4.03 Selection for Redemption
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16
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4.04 Partial Redemption
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16
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4.05 Notice of Redemption
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17
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4.06 Payment of Redemption Price
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17
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4.07 Purchase of Debentures
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17
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4.08 Cancellation of Debentures
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18
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ARTICLE FIVE
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Covenants of the Corporation
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5.01 Payment of Principal, Premium and Interest
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19
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5.02
Offices for Notices, Payments and Registration of Transfer, Etc.
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19
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5.03 Provisions as to Paying Agents
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20
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5.04 Appointments to Fill Vacancies in Trustees Office
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20
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5.05 Trustees Remuneration and Expenses
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21
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5.06 Not to Accumulate Interest
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21
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5.07 Inspection of Books by Trustee
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21
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5.08 Performance of Covenants by Trustee
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21
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5.09 Annual Certificate of Compliance
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22
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ARTICLE SIX
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Default and Enforcement
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6.01 Events of Default
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23
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6.02 Acceleration on Default
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25
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6.03 Proceedings by the Trustee
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26
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6.04 Suits by Debentureholders
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27
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6.05 Application of Moneys Received by Trustee
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27
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6.06 Distribution of Proceeds
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28
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6.07
Immunity of Shareholders, etc.
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28
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ii
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Section
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Page
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ARTICLE SEVEN
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Satisfaction and Discharge
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7.01 Cancellation and Destruction
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30
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7.02 Non Presentation of Debentures and Coupons
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30
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7.03 Paying Agent to Repay Moneys Held
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30
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7.04 Repayment of Unclaimed Moneys to Corporation
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31
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7.05 Release from Covenants
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31
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ARTICLE EIGHT
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Consolidation and Amalgamation
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8.01 General Provisions
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32
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8.02 Status of Successor Corporation
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33
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ARTICLE NINE
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Meetings of Debentureholders
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9.01 Right to Convene Meeting
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34
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9.02 Notice
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34
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9.03 Chairman
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34
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9.04 Quorum
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34
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9.05 Power to Adjourn
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35
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9.06 Show of Hands
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35
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9.07 Poll
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35
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9.08 Voting
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35
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9.09 Regulations
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36
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9.10 Corporation and Trustee may be Represented
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37
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9.11 Powers Exercisable by Extraordinary Resolution
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37
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9.12 Powers Cumulative
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39
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9.13 Meaning of Extraordinary Resolution
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39
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9.14 Minutes
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40
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9.15 Instruments in Writing
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40
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9.16 Binding Effect of Resolutions
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40
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9.17 Serial Meetings
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41
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iii
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Section
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Page
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ARTICLE TEN
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Supplemental Indentures
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10.01 Execution of Supplemental Indentures
|
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43
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ARTICLE ELEVEN
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Concerning the Trustee
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11.01 Trust Indenture Legislation
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45
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11.02 Rights and Duties of Trustee
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45
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11.03 Evidence, Experts and Advisers
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46
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11.04 Documents, Moneys, etc., Held by Trustee
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47
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11.05 Notices of Events of Default
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47
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11.06 Action by Trustee to Protect Interests
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47
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11.07 Trustee not Required to give Security
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47
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11.08 Protection of Trustee
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47
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11.09 Replacement of Trustee
|
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48
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11.10 Conflict of Interest
|
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49
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11.11 Fondé de Pouvoir
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49
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11.12 Acceptance of Trust
|
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49
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ARTICLE TWELVE
|
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Notices
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12.01 Notice to Debentureholders
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50
|
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12.02 Notice to the Trustee
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50
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12.03 Notice to the Corporation
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51
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|
ARTICLE THIRTEEN
|
|
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|
|
Execution
|
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|
13.01 Counterparts and Formal Date
|
|
|
52
|
|
iv
THIS INDENTURE made as of April 17, 1996
|
|
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BETWEEN:
|
|
BELL CANADA incorporated under the laws of Canada and having its
registered office in the City of Montréal, in the Province of
Québec, herein called the Corporation
|
|
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|
|
OF THE FIRST PART
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|
- and -
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|
|
MONTREAL TRUST COMPANY COMPAGNIE MONTRÉAL TRUST, a trust
company incorporated under the laws of Québec and having its head
office in the City of Montréal in the Province of Québec, herein
called the Trustee
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|
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|
|
OF THE SECOND PART
|
Whereas
the Corporation deems it necessary to borrow money for its corporate purposes
and with a view to so doing desires to create and issue its subordinated debentures to be
constituted in the manner hereinafter appearing and to be issued in one or more series from time to
time;
And Whereas
the Corporation is duly authorized to create and issue the subordinated
debentures to be issued as herein provided;
And Whereas
all things necessary have been done and performed to make the
subordinated debentures when certified by the Trustee and issued as in this Trust Indenture
provided valid, binding and legal obligations of the Corporation with the benefits and subject to
the terms of the Trust Indenture;
And Whereas
the Trustee has full power and authority to execute this Trust Indenture
and to accept and execute the trusts herein imposed upon it;
1
Section
1.01
NOW THEREFORE THIS INDENTURE WITNESSETH and it is hereby agreed and declared as follows:
ARTICLE ONE
Interpretation
SECTION 1.01.
Definitions.
In this Trust Indenture, unless there is something in the subject matter
or context inconsistent therewith:
affiliate means any person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, the Corporation. A person shall be presumed to be
controlled by the Corporation if (i) in accordance with generally accepted accounting principles in
Canada, its accounts are consolidated with those of the Corporation or it is accounted for by the
equity method in the Corporations consolidated financial statements and (ii) the Corporation owns
directly or indirectly securities representing 25% or more of the common equity of such person or
possessing under ordinary circumstances more than 25% of the voting power of all securities
entitled to elect directors, managers or trustees of such person.
certificate of the Corporation means a written certificate signed in the name of the
Corporation by its chairman of the board, its president, a vice-president, its corporate secretary
or any assistant corporate secretary;
certified resolution means a copy of a resolution certified by the corporate secretary or an
assistant corporate secretary of the Corporation under its corporate seal to have been duly passed
by the directors and to be in full force and effect on the date of such certification and also
means a certificate or writing of any officer of the Corporation certified by the corporate
secretary or an assistant corporate secretary of the Corporation under its corporate seal to have
been duly made by the officer and to be in full force and effect on the date of such certification;
Corporation means the Party of the First Part and every successor company which shall have
complied with the provisions of Article Eight;
counsel means a barrister or solicitor or firm of barristers and solicitors retained by the
Trustee or retained by the Corporation and acceptable to the Trustee;
Debentures or Subordinated Debentures means the subordinated debentures or other debt
security of the Corporation issued and certified hereunder and for the
2
Section
1.01
time being outstanding; coupon Debentures means subordinated debentures which are issued with
interest coupons attached; coupons means the interest coupons attached or pertaining to coupon
Debentures; fully registered Debentures means subordinated debentures without coupons which are
registered as to principal and interest as hereinafter provided; registered Debentures means and
includes fully registered Debentures and coupon Debentures registered as to principal only; and
unregistered Debentures means subordinated debentures which are not so registered;
Debentureholders or holders means as regards registered Debentures the several persons for
the time being entered in the registers hereinafter mentioned as holders thereof and as regards
unregistered Debentures the bearers thereof for the time being;
Debentureholders Request means an instrument signed in one or more counterparts by the
holder or holders of not less than 25% in principal amount of the Debentures outstanding for the
time being, requesting the Trustee to take some action or proceeding specified therein;
director means a director or officer of the Corporation for the time being, and reference
without more to action by the directors means action by the directors of the Corporation as a board
or, whenever duly empowered, action by an officer of the Corporation or action by or a resolution
of any committee of the board;
event of default has the meaning attributed to it in Section 6.01;
extraordinary resolution has the meaning attributed to it in Article Nine;
person means an individual, a corporation, a partnership, a trustee or an unincorporated
organization; and pronouns have a similarly extended meaning;
Registrar means, if appointed, the registrar or registrars appointed by the Corporation with
the approval of the Trustee;
Senior Debt means the principal of, premium, if any, interest on and all other amounts in
respect of: (i) indebtedness, other than indebtedness represented by the Debentures issued pursuant
to the provisions of this Trust Indenture, issued, assumed or guaranteed by the Corporation for
borrowed money or for the deferred purchase price of property (including, without limitation, by
means of acceptances, debt instruments and finance leases and any liability evidenced by bonds,
debentures, notes or similar instruments); (ii) all other liabilities of the Corporation created,
incurred,
3
Section
1.01
assumed or guaranteed by the Corporation; and (iii) renewals, extensions or refunding of any
indebtedness referred to in (i) or (ii) of this definition, except, in each case, those which by
their terms rank in right of payment equally with or subordinate to the Debentures;
subsidiary means any corporation the majority of the shares of capital stock of which at the
time outstanding, having under ordinary circumstances (not dependent upon the happening of a
contingency) voting power to elect a majority of directors of such corporation, is owned directly
or indirectly by the Corporation or by one or more of its other subsidiaries or by the Corporation
in conjunction with one or more of its other subsidiaries;
Trust Indenture, Indenture, herein, hereby, hereof and similar expressions mean or
refer to this indenture and include any and every indenture, deed or instrument supplemental or
ancillary hereto; and the expressions Article and section followed by a number mean and refer
to the specified Article or section of this indenture;
Trustee means the Party of the Second Part and its successors for the time being in the
trusts hereby created;
Wholly-Owned Subsidiary means any corporation of which the Corporation or another
Wholly-Owned Subsidiary owns all the outstanding equity securities and Funded Debt which such
corporation may have issued, incurred, assumed or guaranteed, except shares necessary to qualify
its directors;
written order of the Corporation means a written order signed in the name of the Corporation
by its chairman of the board, its president, a vice-president, its corporate secretary or any
assistant corporate secretary; and written request of the Corporation has a similar meaning;
words importing the singular number include the plural and vice versa and words importing
gender include the masculine, feminine and neuter genders.
SECTION 1.02.
Meaning of outstanding for Certain Purposes.
Every Debenture certified and
delivered by the Trustee or the Registrar hereunder shall be deemed to be outstanding until it
shall be cancelled or delivered to the Trustee for cancellation or moneys for the payment thereof
shall be set aside under Section 7.02 provided that:
4
Section
1.02
(1) Debentures which have been partially redeemed shall be deemed to be outstanding only to
the extent of the unredeemed part of the principal amount thereof:
(2) where a new Debenture has been issued in substitution for a Debenture which has been lost,
stolen or destroyed, only one of them shall be counted for the purpose of determining the aggregate
principal amount of Debentures outstanding; and
(3) for the purpose of any provision of this Trust Indenture entitling holders of outstanding
Debentures to vote, sign consents, requisitions or other instruments or take any other action under
this Trust Indenture, Debentures owned legally or equitably by the Corporation or any affiliate
shall be disregarded except that:
(a) for the purpose of determining whether the Trustee shall be protected in
relying on any such vote, consent, requisition, instrument or other action only the
Debentures which the Trustee knows are so owned shall be so disregarded; and
(b) Debentures so owned which have been pledged in good faith other than to the
Corporation or any affiliate shall not be so disregarded if the pledgee shall
establish to the satisfaction of the Trustee the pledgees right to vote such
Debentures in his discretion free from the control of the Corporation or any
affiliate.
SECTION 1.03.
Interpretation not Affected by Headings, etc.
The division of this Trust Indenture
into Articles and sections, the provision of a table of contents and the insertion of headings are
for convenience of reference only and shall not affect the construction or interpretation hereof.
SECTION 1.04.
Applicable Law.
This Trust Indenture and the Debentures and coupons shall be
construed in accordance with the laws of the Province of Québec and the laws of Canada applicable
therein.
5
Section
2.01
ARTICLE TWO
Issue of Debentures
SECTION 2.01.
Limit of Issue.
The aggregate principal amount of Debentures which may be authorized
and outstanding at any one time hereunder is unlimited in aggregate principal amount. The
Debentures may be issued in several series as herein provided.
SECTION 2.02.
Series 1 Subordinated Debentures.
The first series of Debentures authorized to be
issued hereunder (sometimes referred to as Series I Subordinated Debentures) shall be in the
aggregate principal amount, bear the rate of interest, be dated and mature and be subject to the
terms and conditions as are provided in the First Supplemental Trust Indenture between the
Corporation and the Trustee dated as of April 17, 1996.
SECTION 2.03.
Computation of Interest.
(1) Fully registered Debentures issued hereunder, whether originally or upon exchange or in
substitution for previously issued Debentures, shall bear interest from their respective dates or
from the interest payment date next preceding the date of certification, whichever shall be the
later, unless such date of certification be an interest payment date in which event such Debentures
shall bear interest from such interest payment date.
(2) Coupon Debentures shall bear interest from their date. The coupons (if any) matured at the
date of delivery by the Trustee of any coupon Debenture shall be detached therefrom and cancelled
before delivery, unless such Debenture is being issued in exchange or in substitution for another
Debenture (whether in interim or definitive form) and such matured coupons represent unpaid
interest to which the holder of such exchanged or substituted Debenture is entitled.
SECTION 2.04.
Creation and Issue of Additional Debentures
(1) The directors may from time to time authorize the creation of one or more subsequent
series of Debentures hereunder. The Debentures of any such subsequent series (herein sometimes
referred to as additional Debentures) may be limited to such aggregate principal amount, bear
such date or dates, mature on such date or dates (and contain provisions for the extension or
retraction of maturity date or dates), bear such rate or rates of interest, be in such
denominations and forms, be redeemable at
6
Section
2.04
such prices, be entitled to the benefit of such covenants, purchase or sinking fund, amortization
fund or analogous provisions, tax provisions, conversion rights and/or stock purchase rights, be
payable as to principal, premium, if any, and interest at such time or times, at such place or
places and in Canadian and/or such other currency or currencies and contain such other terms or
provisions not inconsistent herewith as the directors may determine.
(2) Before the issue of any Debentures of any such subsequent series the Corporation shall
execute and deliver to the Trustee an indenture supplemental hereto for the purpose of establishing
the terms thereof and the forms and denominations in which they may be issued, together with a
certified resolution authorizing the same, and the Trustee shall execute and deliver such
supplemental indenture pursuant to Article Ten.
(3) Whenever any series of additional Debentures shall have been authorized as aforesaid the
same may be from time to time executed by the Corporation and delivered to the Trustee and shall be
certified by the Trustee or the Registrar and delivered by the Trustee or the Registrar to or to
the order of the Corporation upon receipt by and deposit with the Trustee of the following:
(a) a certified resolution requesting certification and delivery of a specified
principal amount of Debentures of such subsequent series;
(b) a certificate of the Corporation that it is not in default in the
performance of any of its covenants herein contained and that it has complied with
all the requirements of this Trust Indenture, and of any other instrument providing
for the issuance of debt obligations of the Corporation, in connection with the
issue of the Debentures of which certification is requested;
(c) such reports and certificates, if any, as may be required by any provision
hereof to evidence compliance with any covenant restricting the issuance of
indebtedness;
(d) a written order of the Corporation addressed to the Trustee or the
Registrar for the certification and delivery of such Debentures; and
(e) an opinion of counsel that all requirements imposed by this Trust Indenture
or by law in connection with the proposed issue of Debentures have been complied
with.
7
Section
2.04
(4) No additional Debentures shall be certified or delivered hereunder if, to the knowledge of
the Trustee, an event of default shall have occurred and be continuing.
SECTION 2.05.
Subordination.
(1) In the event of insolvency or winding-up of the Corporation, the indebtedness evidenced by
the Debentures issued pursuant to the provisions of this Trust Indenture will be subordinate in
right of payment to the prior payment in full of all Senior Debt of the Corporation, whether
outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed.
(2) Each holder of Debentures or coupons by his acceptance thereof agrees to and shall be
bound by the subordination provided for in subsection (1) of this Section 2.05 and authorizes and
directs the Trustee on his behalf to take such action, if any, as may be necessary or appropriate
further to assure the same and appoints the Trustee his agent for such purpose.
SECTION 2.06.
Debentures to Rank Pari Passu.
All Debentures issued pursuant to the provisions of
this Trust Indenture shall rank
pari passu
and be secured equally and rateable without
discrimination, preference or priority whatever may be the actual date thereof or of the
certification thereof or terms of issue of the same respectively, save only as to purchase or
sinking fund, amortization fund or analogous provisions (if any) applicable to different series.
SECTION 2.07.
Signing of Debentures.
The Debentures shall be under the corporate seal of the
Corporation or a reproduction thereof (which shall be deemed to be the corporate seal of the
Corporation) and shall be signed by the chairman of the board of directors, the president or a
vice-president and by the corporate secretary or the corporate treasurer of the Corporation and the
coupons shall be signed by any one of the said officers. The signatures of such officers may be
mechanically reproduced in facsimile and Debentures and coupons bearing such facsimile signatures
shall be binding upon the Corporation as if they had been manually signed by such officers.
Notwithstanding that any of the persons whose manual or facsimile signature appears on any
Debenture or coupon as one of such officers may no longer hold office at the date of this Trust
Indenture or at the date of such Debenture or coupon or at the date of certification and delivery
thereof, any Debenture or coupon signed as aforesaid shall be valid and binding upon the
Corporation.
8
Section
2.08
SECTION 2.08.
Certification by the Trustee or the Registrar.
(1) No Debenture shall be issued or, if issued, shall be obligatory or entitle the holder to
the benefit hereof until it has been certified by or on behalf of the Trustee or the Registrar in
the form of the certificate set out in the Debentures or in some other form approved by the Trustee
and such certification by the Trustee or the Registrar upon any Debenture shall be conclusive
evidence as against the Corporation that the Debenture so certified has been duly issued hereunder
and is a valid obligation of the Corporation and that the holder is entitled to the benefit hereof.
(2) The certificate of the Trustee or the Registrar on Debentures issued hereunder shall not
be construed as a representation or warranty by the Trustee or the Registrar as to the validity of
this Trust Indenture or of the Debentures (except the due certification thereof) and the Trustee or
the Registrar shall in no respect be liable or answerable for the use made of the Debentures or any
of them or of the proceeds thereof.
SECTION 2.09.
Interim Debentures.
Pending the delivery of definitive Debentures of any series, the
Corporation may issue and the Trustee or the Registrar certify in lieu thereof interim Debentures,
with or without coupons, in such forms and in such denominations and signed in such manner as the
Trustee and the Corporation may approve, entitling the holders thereof to definitive Debentures of
the said series when the same are ready for delivery. When so issued and certified, such interim
Debentures shall, for all purposes, be deemed to be debentures and, pending the exchange thereof
for definitive Debentures, the holders of the said interim Debentures shall be deemed to be
Debentureholders and entitled to the benefit of this Trust Indenture to the same extent and in the
same manner as though the said exchange had actually been made. Forthwith after the Corporation
shall have executed and delivered the definitive Debentures to the Trustee or the Registrar, the
Trustee or the Registrar shall call in for exchange all interim Debentures that shall have been
issued and forthwith after such exchange shall cancel the same together with all unmatured coupons
(if any) pertaining thereto. No charge shall be made by the Corporation, the Trustee or the
Registrar to the holders of such interim Debentures for such exchange thereof. All interest paid
upon interim Debentures without coupons shall be noted thereon as a condition precedent to such
payment unless paid by cheque to the registered holders thereof.
SECTION 2.10.
Issue in Substitution for Lost Debentures.
(1) In case any of the Debentures issued and certified hereunder or coupons pertaining thereto
shall become mutilated or be lost, destroyed or stolen, the
9
Section
2.10
Corporation in its discretion may issue and thereupon the Trustee or the Registrar shall certify
and deliver a new Debenture or coupon of like date and tenor as the one mutilated, lost, destroyed
or stolen in exchange for and in place of and upon cancellation of such mutilated Debenture or
coupon or in lieu of and in substitution for such lost, destroyed or stolen Debenture or coupon and
the new Debenture or coupon shall be in a form approved by the Trustee and shall be entitled to the
benefit hereof and rank equally in accordance with its terms with all other Debentures or coupons
issued or to be issued hereunder.
(2) The applicant for the issue of a new Debenture or coupon pursuant to this section shall
bear the cost of the issue thereof and in case of loss, destruction or theft shall, as a condition
precedent to the issue thereof, furnish to the Corporation and to the Trustee or to the Registrar
such evidence of ownership and of the loss, destruction or theft of the Debenture or coupon so
lost, destroyed or stolen as shall be satisfactory to the Corporation and the Trustee or the
Registrar in their discretion and such applicant may also be required to furnish indemnity in
amount and form satisfactory to the Corporation and the Trustee or the Registrar in their
discretion, and shall pay the reasonable charges of the Corporation and the Trustee or the
Registrar in connection therewith.
10
Section
3.01
ARTICLE THREE
Registration, Transfer, Exchange and Ownership of Debentures
SECTION 3.01.
Fully Registered Debentures.
(1) With respect to each series of Debentures issuable as fully registered Debentures, unless
otherwise provided in the supplemental indenture establishing the terms thereof, the Corporation
shall cause to be kept by and at the principal office of the Trustee or the Registrar in the City
of Montréal a register in which shall be entered the names and addresses of the holders of fully
registered Debentures of such series and particulars of the Debentures held by them respectively.
Unless otherwise provided as aforesaid, the Corporation shall also, with respect to each series of
Debentures issuable as fully registered Debentures, cause to be provided by and at such principal
office of the Trustee or the Registrar facilities for the exchange and transfer of fully registered
Debentures, and by and at the principal offices of the Trustee or the Registrar in each of the
cities of St. Johns (Newfoundland), Halifax, Charlottetown, Saint John (New Brunswick), Toronto,
Winnipeg, Regina, Calgary and Vancouver facilities for the registration, exchange and transfer of
fully registered Debentures. The Corporation may from time to time provide additional facilities
for such registration, exchange and transfer at other offices of the Trustee or the Registrar or at
other agencies.
(2) No transfer of a fully registered Debenture shall be valid unless made at one of such
offices or other agencies by the registered holder or his executors, administrators or other legal
representatives or his or their attorney duly appointed by an instrument in writing in form and
execution satisfactory to the Trustee or the Registrar and upon compliance with such reasonable
requirements as the Trustee or the Registrar may prescribe, nor unless the name of the transferee
shall have been noted on the Debenture by the Trustee or the Registrar or other agent.
SECTION 3.02.
Coupon Debentures.
(1) Coupon Debentures issued hereunder shall be negotiable and title thereto shall pass by
delivery unless registered as to principal for the time being as hereinafter provided.
Notwithstanding registration of coupon Debentures as to principal, the coupons when detached shall
continue to be payable to bearer and title thereto shall pass by delivery.
11
Section
3.02
(2) With respect to each series of Debentures issuable as coupon Debentures registrable as to
principal only, unless otherwise provided in the supplemental indenture establishing the terms
thereof, the Corporation shall cause to be kept by and at the principal office of the Trustee or
the Registrar in the City of Montréal a register in which holders of coupon Debentures of such
series may register the same as to principal only and in which shall be entered the names and
addresses of the holders of coupon Debentures of such series registered as to principal and
particulars of the coupon Debentures so registered held by them respectively. Unless otherwise
provided as aforesaid, the Corporation shall also, with respect to each series of Debentures
issuable as coupon Debentures registrable as to principal only, cause to be provided by and at such
principal office of the Trustee or the Registrar facilities for the exchange and transfer of such
registered Debentures, and by and at the principal offices of the Trustee or the Registrar in each
of the cities of St. Johns (Newfoundland), Halifax, Charlottetown, Saint John (New Brunswick),
Toronto, Winnipeg, Regina, Calgary and Vancouver facilities for the registration, exchange and
transfer of coupon Debentures registrable as to principal only. The Corporation may from time to
time provide additional facilities for such registration, exchange and transfer at other offices of
the Trustee or the Registrar or at other agencies. Such registration shall be noted on the
Debentures by the Trustee or the Registrar or other agent.
(3) After such registration of a coupon Debenture no transfer thereof shall be valid unless
made at one of such offices or other agencies by the registered holder or his executors,
administrators or other legal representatives or his or their attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Trustee or the Registrar or other
agent upon compliance with such reasonable requirements as the Trustee or the Registrar may
prescribe, nor unless such transfer shall have been noted on the Debenture by the Trustee or the
Registrar or other agent; but any such Debenture may be discharged from registry by being
transferred to bearer, after which it shall again be transferable by delivery, but may again from
time to time be registered and discharged from registry.
SECTION 3.03.
Transferee Entitled to Registration.
The transferee of a registered Debenture shall,
after the appropriate form of transfer is lodged with the Trustee or the Registrar or other agent
and upon compliance with all other conditions in that behalf required by this Trust Indenture or by
law, be entitled to be entered on the register as the owner of such Debenture free from all
equities or rights of set-off or counterclaim between the Corporation and his transferor or any
previous holder of such Debenture, save in respect of equities of which the Corporation is required
to take notice by statute or by order of a court of competent jurisdiction.
12
Section
3.04
SECTION 3.04.
Exchange of Debentures.
(1) Debentures in any authorized form or denomination may be exchanged upon reasonable notice
for Debentures in any other authorized form or denomination, of the same series and date of
maturity, bearing the same interest rate and of the same aggregate principal amount as the
Debentures so exchanged.
(2) Debentures of any series may be exchanged only at the principal office of the Trustee or
the Registrar in the City of Montréal or at such other place or places (if any) as may be specified
in the Debentures of such series and at such other place or places (if any) as may from time to
time be designated by the Corporation with the approval of the Trustee or the Registrar. Any
Debentures tendered for exchange shall be surrendered to the Trustee or the Registrar together with
all unmatured coupons (if any) and all matured coupons in default (if any) pertaining thereto. The
Corporation shall execute and the Trustee or the Registrar shall certify all Debentures necessary
to carry out exchanges as aforesaid. All Debentures and coupons surrendered for exchange shall be
cancelled.
SECTION 3.05.
Charges for Registration, Transfer and Exchange.
(1) Unless otherwise provided in any supplemental indenture, for each Debenture exchanged,
registered, transferred or discharged from registration the Trustee or the Registrar or other agent
shall, if required by the Corporation, make a charge not exceeding $5 for its services and not
exceeding $5 for each new Debenture issued (if any); provided that no charge to a Debentureholder
shall be made hereunder: (a) for any exchange, registration, transfer or discharge from
registration of any Debenture applied for within the period of two months from and including the
date of such Debenture; or (b) for any exchange of any Debenture which has been issued under
Section 2.08 or Section 4.04.
(2) Payment of any such charges and reimbursement of the Trustee or the Registrar or other
agent or the Corporation for any transfer taxes or governmental or other charges required to be
paid shall be made by the party requesting such exchange, registration, transfer or discharge from
registration as a condition precedent thereto.
SECTION 3.06.
Register Open for Inspection.
The register hereinbefore referred to shall at all
reasonable times be open for inspection by the Corporation, the Trustee or any Debentureholder.
13
SECTION 3.07.
Limitation on Obligation to Effect Transfers or Exchanges.
Neither the Corporation
nor the Trustee nor the Registrar nor any other agent shall be required (a) to make transfers or
exchanges of fully registered Debentures of any series on any interest payment date for Debentures
of that series of during the twenty-one preceding days, or (b) to make exchanges of Debentures of
any series on the day of any selection by the Trustee or the Registrar of Debentures of that series
to be redeemed or during the fifteen preceding days.
SECTION 3.08.
Ownership of Debentures and Coupons.
(1) The person in whose name any registered Debenture is registered shall for all the purposes
of this Trust Indenture be and be deemed to be the owner thereof and payment of or on account of
the principal of and premium (if any) on such Debenture and, in the case of a fully registered
debenture, interest thereon shall be made only to or upon the order in writing of such registered
holder.
(2) The Corporation, the Trustee and the Registrar may deem and treat the bearer of any
unregistered Debenture and the bearer of any coupon, whether or not the Debenture from which it has
been detached shall be registered as to principal, as the absolute owner of such Debenture or
coupon, as the case may be, for all purposes and neither the Corporation nor the Trustee nor the
Registrar nor any other agent shall be affected by any notice to the contrary.
(3) Neither the Corporation nor the Trustee nor the Registrar nor any other agent shall be
bound to take notice of or see to the execution of any trust, whether express, implied or
constructive, in respect of any Debenture and may transfer the same on the direction of the person
registered as the holder thereof, whether named as trustee or otherwise, as though that person were
the beneficial owner thereof.
(4) The registered holder for the time being of any registered Debenture and the bearer of any
unregistered Debenture and the bearer of any coupon shall be entitled to the principal, premium (if
any) and/or interest evidenced by such instruments respectively free from all equities or rights of
set-off or counter-claim between the Corporation and the original or any intermediate holder
thereof and all persons may act accordingly and receipt of any such registered holder or bearer, as
the case may be, for any such principal, premium or interest shall be a good discharge to the
Corporation and the Trustee for the same and neither the Corporation nor the Trustee shall be bound
to inquire into the title of any such registered holder or bearer.
(5) Upon receipt of a certificate of any bank, trust company or other depositary satisfactory
to the Trustee or the Registrar stating that the unregistered Debentures specified therein have
been deposited by a named person with such bank, trust
14
Section
3.08
company or other depositary and will remain so deposited until the expiry of the period specified
therein, the Corporation and the Trustee or the Registrar may treat the person so named as the
owner, and such certificate as sufficient evidence of the ownership by such person during such
period, of such Debentures, for the purpose of any Debentureholders Request, requisition,
direction, consent, instrument or other document to be made, signed or given by the holder of the
Debentures so deposited. The Corporation and the Trustee may treat the registered holder of any
Debenture as the owner thereof without actual production of such Debenture for the purpose of any
Debentureholders Request, requisition, direction, consent, instrument or other document as
aforesaid.
15
Section
4.01
ARTICLE FOUR
Redemption and Purchase of Debentures
SECTION 4.01.
Redemption of Debentures.
The provisions of sections 4.02 to 4.08, inclusive, shall
apply to Debentures of all series that are by their terms redeemable, unless otherwise provided in
the supplemental indentures establishing the terms of Debentures of such series.
SECTION 4.02.
Places of Payment.
The redemption price shall be payable upon presentation and
surrender of the Debentures to be redeemed with all unmatured coupons (if any) pertaining thereto
at any of the places where the principal of such Debentures is expressed to be payable and at such
other places (if any) as may be specified in the notice of redemption.
SECTION 4.03.
Selection for Redemption.
If less than all the outstanding Debentures of any one
series are to be redeemed at any one time, the Trustee or the Registrar shall select the Debentures
to be redeemed by lot in such manner (which may include random selection by electronic computer) as
the Trustee or the Registrar shall deem equitable.
SECTION 4.04.
Partial Redemption.
(1) Any part, being $1,000 or a multiple thereof, of a Debenture of a denomination in excess
of $1,000 may be selected and called for redemption as hereinafter provided and all references in
this Trust Indenture to redemption of Debentures shall be deemed to include redemption of any such
part.
(2) The holder of any Debenture of which part only is redeemed shall, upon presentation of his
said Debenture and upon receiving the moneys payable to him by reason of such redemption, surrender
the said Debenture to the paying bank for transmission to the Trustee or the Registrar and the
Trustee or the Registrar shall cancel the same and shall without charge forthwith certify and
deliver or cause to be certified and delivered to the said holder a new Debenture or Debentures of
the same series and maturity of aggregate principal amount equal to the unredeemed part of the
principal amount of the Debenture so surrendered; or, at the option of such holder in the case of a
fully registered Debenture, the Trustee or the Registrar shall return or cause to be returned this
said Debenture to him after making notation thereon of the part of the principal amount thereof so
redeemed.
16
Section
4.05
SECTION 4.05.
Notice of Redemption.
Notice of redemption of any Debentures shall be given to the
holders of the Debentures which are to be redeemed, not more than 90 days nor less than 30 days
prior to the date fixed for redemption, in the manner provided in Article Twelve. Every such notice
shall specify the aggregate principal amount of Debentures called for redemption, the redemption
date, the redemption price and the places of payment and shall state that interest upon the
principal amount of Debentures called for redemption shall cease to be payable from and after the
redemption date. In addition, unless all the outstanding Debentures are to be redeemed, the notice
of redemption shall specify the designations and maturities of the Debentures which are to be
redeemed and, in case less than all the Debentures of any one series and maturity are to be
redeemed, shall also specify:
(a) in the case of a notice mailed to a registered Debentureholder, the
distinguishing letters and numbers of the registered Debentures which are to be
redeemed (or of such thereof as are registered in the name of such Debentureholder);
(b) in the case of a published notice, the distinguishing letters and numbers
of the unregistered Debentures which are to be redeemed or, if such unregistered
Debentures are selected by terminal digit or other similar system, such particulars
as may be sufficient to identify the unregistered Debentures so selected; and
(c) in both cases, the principal amounts of such Debentures or, if any such
Debenture is to be redeemed in part only, the principal amount of such part.
SECTION 4.06.
Payment of Redemption Price.
Upon notice being given as aforesaid the principal
amount of the Debentures so called for redemption and the principal amount to be redeemed of the
Debentures so called for redemption in part shall be and become due and payable at the redemption
price, on the redemption date specified in such notice and with the same effect as if it were the
date of maturity specified in such Debentures, and from and after such redemption date interest
upon the principal amounts so becoming due and payable shall cease unless payment of the redemption
price shall not be made on presentation for surrender of such Debentures and all unmatured coupons
(if any) pertaining thereto at any of the places specified in Section 4.02 on or after the
redemption date and prior to the setting aside of the redemption price pursuant to Article Seven.
SECTION 4.07.
Purchase of Debentures.
The Corporation shall have the right at any time and from
time to time to purchase Debentures in the market, by tender or by private contract at prices not
exceeding the redemption price applicable to
17
Section
4.07
redemptions of Debentures, for other than sinking fund purposes, at the time of purchase, plus
accrued interest and costs of purchase.
SECTION 4.08.
Cancellation of Debentures.
Subject to the provisions of Section 4.04 as to
Debentures redeemed in part, all Debentures redeemed or purchased by the Corporation under the
provisions of this Article, with the unmatured coupons (if any) pertaining thereto, shall be
forthwith delivered to and cancelled by the Trustee or the Registrar and shall not be reissued.
18
Section
5.01
ARTICLE FIVE
Covenants of the Corporation
SECTION 5.01.
Payment of Principal, Premium and Interest.
The Corporation hereby covenants and
agrees that it will well, duly and punctually pay or cause to be paid to every holder of every
Debenture issued hereunder the principal thereof, premium (if any) and interest accrued thereon
(including, in case of default, interest on all amounts overdue at the rate specified therein) at
the dates and places, in the currencies, and in the manner mentioned herein and in such Debentures
and in the coupons, if any, pertaining thereto. Unless otherwise provided in the supplemental
indenture creating a series of Debentures, as interest becomes due on each fully registered
Debenture (except at maturity or on redemption, when interest may at the option of the Corporation
be paid upon surrender of such Debenture for payment) the Corporation, either directly or through
the Trustee or any paying agent, shall send by prepaid ordinary mail a cheque for such interest
(less any tax, if any, required to be withheld therefrom) payable to the order of the then
registered holder of such Debenture and addressed to him at his last address appearing on the
appropriate register, unless such holder otherwise directs. In the case of joint holders the cheque
shall be made payable to the order of all such joint holders and if more than one address appears
on the register in respect of such joint holding the cheque shall be mailed to the first address so
appearing. The mailing of such cheque shall, to the extent of the sum represented thereby plus the
amount of any tax withheld as aforesaid, satisfy and discharge the liability for interest on such
Debenture, unless such cheque be not paid at par on presentation at one of the places where such
interest is by the terms of such Debenture made payable. In the event of non-receipt of any cheque
for interest by the person to whom it is sent as aforesaid, the Corporation will issue to such a
person a replacement cheque for a like amount upon being furnished with such evidence of
non-receipt as it shall reasonably require and upon being indemnified to its satisfaction.
SECTION 5.02.
Offices for Notices, Payments and Registration of Transfer, Etc.
The Corporation will
maintain in the City of Montreal, and in such other places as the directors of the Corporation
shall designate from time to time, an office or agency where the Debentures may be presented for
payment, an office or agency where the Debentures may be presented for registration of transfer,
for exchange and for exercise of conversion rights (if any) as in this Trust Indenture provided and
an office or agency where notices and demands to or upon the Corporation in respect of the
Debentures or this Trust Indenture may be served. The Corporation will give to the Trustee written
notice of the location of any such office or
19
Section
5.02
agency and of any change of location thereof. In case the Corporation shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be served at the principal
office of the Trustee in the City of Montréal.
SECTION 5.03.
Provisions as to Paying Agents.
(a) The Corporation will cause any paying agent other than the Trustee which it may appoint to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 5.03.
(1) that it will hold all sums held by it as such agent for the payment of principal of
and premium, if any, and interest on any of the Debentures in trust for the benefit of the
holders of such Debentures; and
(2) that it will give the Trustee notice of any failure of the Corporation or any other
obligor upon the Debentures to make any payment of the principal of and premium, if any, and
interest on the Debentures when the same shall be due and payable.
(b) The Corporation covenants and agrees that, if it should at any time act as its own paying
agent, it will so notify the Trustee and hold in trust or cause to be held in trust for the benefit
of the holders of such Debentures all sums held by it as such agent for the payment of principal
and premium, if any, and interest on any of the Debentures and will notify the Trustee of any
default by it in the making of any such payment.
(c) anything in this Section 5.03 to the contrary notwithstanding, the Corporation may at any
time, for the purpose of obtaining the satisfaction and discharge of this Trust Indenture or for
any other reason, pay or cause to be paid to the Trustee all sums held in trust by it and any
paying agent hereunder, as required by this Section 5.03, such sums to be held by the Trustee upon
the trusts herein contained.
(d) Anything in this Section 5.03 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 5.03 is subject to sections 7.03 and 7.04.
SECTION 5.04.
Appointments to Fill Vacancies in Trustees Office.
The Corporation, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint a Trustee, so that
there shall at all times be a Trustee hereunder.
20
Section
5.05
SECTION 5.05.
Trustees Remuneration and Expenses.
The Corporation covenants that it will pay to
the Trustee from time to time reasonable remuneration for its services hereunder and will pay or
reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in the administration or execution of the trusts hereby created
(including the reasonable compensation and the disbursements of its counsel and all other advisers
and assistants not regularly in its employ), both before any default hereunder and thereafter until
all duties of the Trustee under the trusts hereof shall be finally and fully performed, except any
such expense, disbursement or advance as may arise from its negligence or wilful default. After
default all amounts so payable shall be payable out of any funds coming into the possession of the
Trustee or its successors in the trusts hereunder in priority to any payment of the principal of or
interest or premium on the Debentures.
SECTION 5.06.
Not to Accumulate Interest.
In order to prevent any accumulation after maturity of
coupons or interest the Corporation covenants with the Trustee that it will not, unless otherwise
provided in the supplemental indenture creating a series of Debentures or except with the approval
of the Debentureholders expressed by extraordinary resolution, directly or indirectly extend or
assent to the extension of time for payment of any coupons or interest payable hereunder or be a
party to or approve any such arrangement by purchasing or funding any of said coupons or interest
or in any other manner. In case the time for payment of any such coupons or interest shall be so
extended, whether for a definite period or otherwise, such coupons or interest shall not be
entitled in case of default hereunder to the benefit of these presents, except subject to the prior
payment in full of the principal of and premium (if any) on all Debentures then outstanding and of
all matured coupons and interest on such Debentures, the payment of which has not been so extended,
and of all other moneys payable thereunder.
SECTION 5.07.
Inspection of Books by Trustee.
At any and all times, upon the written request of the
Trustee, the Corporation will permit the Trustee, by its agents and attorneys, to make reasonable
examinations of the books of account, records, reports and other papers of the Corporation and to
take copies and extracts therefrom.
SECTION 5.08.
Performance of Covenants by Trustee.
If the Corporation shall fail to perform any of
its covenants contained in this Trust Indenture the Trustee may notify the Debentureholders of such
failure on the part of the Corporation or may itself perform any of said covenants capable of being
performed by it, but subject to Section 6.03 and Section 11.02 shall be under no obligation to do
so or to notify the Debentureholders. All sums so expended or advanced by the Trustee shall be
repayable
21
Section
5.09
as provided in Section 5.05. No such performance or advance by the Trustee shall be deemed to
relieve the Corporation of any default hereunder.
SECTION 5.09.
Annual Certificate of Compliance.
Within 120 days after the end of each fiscal year
of the Corporation, and at any other time if requested by the Trustee, the Corporation shall
furnish the Trustee with a certificate of the Corporation stating that in the course of the
performance by the signers of their duties as officers or directors of the Corporation they would
normally have knowledge of any default by the Corporation in the performance of its covenants under
this Trust Indenture or of any event of default under Article Six and certifying that the
Corporation has complied with all covenants, conditions or other requirements contained in this
Trust Indenture non-compliance with which would, with notification or with the lapse of time or
otherwise, constitute an event of default hereunder, or, if such is not the case, setting forth
with reasonable particulars the circumstances of any failure to comply.
In addition, on becoming aware at any time of any event of default of the nature specified in
subsection (f) of Section 6.01 the Corporation will promptly notify the Trustee.
22
Section
6.01
ARTICLE SIX
Default and Enforcement
SECTION 6.01.
Events of Default.
If and when any one or more of the following events (herein
sometimes called events of default) shall happen and be continuing, that is to say:
(a) default shall be made in the due and punctual payment of the principal of
or premium, if any, on any Debenture when and as the same shall become due and
payable, whether at maturity or otherwise;
(b) default shall be made in the due and punctual payment of any installment of
interest on any Debenture when and as such interest installment shall become due and
payable as in such Debenture or in this Trust Indenture or any indenture
supplemental hereto expressed, and any such default shall have continued for a
period of 90 days;
(c) default shall be made in the payment of any purchase or sinking fund,
amortization fund or analogous fund installment on any Debenture as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days;
(d) default shall be made by the Corporation in the performance or observance
of any other of the covenants, agreements or conditions on its part in this Trust
Indenture or any indenture supplemental hereto or in the Debentures contained and
such default shall have continued for a period of 90 days after written notice to
the Corporation by the Trustee specifying such default and requiring it to be
remedied and stating that such a notice is a Notice of Default hereunder or after
written notice to the Corporation and to the Trustee by the holders of not less than
25% in principal amount of Debentures at the time outstanding (excluding Debentures
of any series not entitled to the benefits of such covenant, agreement or
condition); or
(e) the Corporation shall make an assignment for the benefit of creditors, or
shall file a petition in bankruptcy; or the Corporation shall be adjudicated
insolvent or bankrupt, or shall petition or shall apply to any court having
jurisdiction in the premises for the appointment of a receiver, trustee, liquidator
or sequestrator of, or for, the Corporation or any substantial portion of the
property of the Corporation; or the Corporation shall commence any proceeding
relating to
23
Section
6.01
the Corporation or any substantial portion of the property of the Corporation under
any insolvency reorganization, arrangement, or readjustment of debt, dissolution,
winding-up, adjustment, composition or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (e)
called Proceeding); or if there shall be commenced against the Corporation any
Proceeding and an order approving the petition shall be entered, or such Proceeding
shall remain undischarged for a period of 60 days; or a receiver, trustee,
liquidator or sequestrator of, or for, the Corporation or any substantial portion of
the property of the Corporation shall be appointed and shall not be discharged
within a period of 60 days; or the Corporation by any act shall indicate consent to
or approval of or acquiescence in any Proceeding or the appointment of a receiver,
trustee, liquidator or sequestrator of, or for, the Corporation or any substantial
portion of the property of the Corporation, provided that a resolution or order for
winding-up the Corporation with a view to its consolidation, amalgamation or merger
with another company or the transfer of its assets as a whole, or substantially as a
whole, to such other company as provided in Section 8.01 shall not make the rights
and remedies herein enforceable under this subsection (e) of Section 6.01 if such
last-mentioned company shall, as a part of such consolidation, amalgamation, merger
or transfer, and within 60 days from the passing of the resolution or the date of
the order, comply with the conditions to that end stated in Section 8.01;
then, and in each and every such case, unless the principal of all of the Debentures shall have
already become due and payable, the Trustee or the holders of not less than 25% in aggregate
principal amount of Debentures at the time outstanding hereunder may declare the principal amount
of all Debentures and interest thereon and other moneys payable hereunder to be immediately due and
payable; and upon any such declaration the same shall become and be immediately due and payable,
anything in this Trust indenture or in any of the Debentures contained to the contrary
notwithstanding. Any such declaration by the Trustee may be made by notice in writing to the
Corporation, and such declaration by the holders of not less than 25% in principal amount of
Debentures at the time outstanding may be made by a Debentureholders Request. The right of the
Trustee or of the holders of not less than 25% in principal amount of Debentures at the time
outstanding to make any such declaration as aforesaid, however, is subject to the condition that,
if at any time after the principal of the Debentures shall have been so declared due and payable
and prior to the date of maturity thereof as stated in the Debentures and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Corporation shall pay or deposit with the Trustee a sum sufficient to pay all arrears
of interest upon all such Debentures and the principal of
24
Section
6.01
and premium, if any, on any and all Debentures which shall have become due otherwise than by
acceleration (with interest, if and to the extent permitted by law, at the rate specified in such
Debentures on any overdue installment of interest, and on such principal and premium, if any, at
the rate borne by the Debentures, to the date of such payment or deposit) and the reasonable
compensation, expenses, costs, liabilities and advances of the Trustee, its agents and attorneys,
and all defaults as aforesaid (other than the payment of principal, premium, if any, and accrued
interest which has been so declared due and payable) shall have been remedied to the satisfaction
of the Trustee or provision deemed by the Trustee to be adequate shall be made therefore, then, and
in every such case, such default and its consequences may be waived and such declaration rescinded
by the holders of more than 50% in principal amount of the Debentures at the time outstanding, but
no such waiver shall extend to or affect any subsequent default or impair or exhaust any right or
power consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Trust Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment
or for any other reason shall have been determined adversely to the Trustee, then and in every such
case the Corporation and the Trustee shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and power of the Corporation and the Trustee shall
continue as though no such proceedings had been taken.
SECTION 6.02.
Acceleration on Default.
In case any event of default hereunder has occurred, the
Trustee may in its discretion and shall upon receipt of a Debentureholders Request declare the
principal of and interest on all Debentures then outstanding and other moneys payable hereunder to
be due and payable and the same shall forthwith become immediately due and payable to the Trustee
on demand, anything therein or herein to the contrary notwithstanding, and the Corporation shall on
such demand forthwith pay to the Trustee for the benefit of the Debentureholders the principal of
and accrued and unpaid interest and interest on amounts in default on such Debentures (and, where
such a declaration is based upon a voluntary winding-up or liquidation of the Corporation, the
premium (if any) on the Debentures then outstanding which would have been payable upon the
redemption thereof by the Corporation, other than through sinking fund operations, on the date of
such declaration) and all other moneys payable thereunder together with subsequent interest thereon
at the rates borne by the Debentures from the date of the said declaration until payment is
received by the Trustee, such subsequent interest to be payable at the times and places and in the
moneys mentioned in and according to the tenor of the Debentures and coupons. Such payment when
made shall be deemed to
25
Section
6.02
have been made in discharge of the Corporations obligations hereunder and any moneys so received
by the Trustee shall be applied as herein provided.
SECTION 6.03.
Proceedings by the Trustee.
(1) Whenever any event of default hereunder has occurred, but subject to the provisions of
Section 6.01 and to the provisions of any extraordinary resolution:
(a) the Trustee, in the exercise of its discretion, may proceed to enforce the
rights of the Trustee and the Debentureholders by any action, suit, remedy or
proceeding authorized or permitted by law or by equity and may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and the Debentureholders lodged in any bankruptcy,
winding-up or other judicial proceedings relative to the Corporation; and
(b) upon receipt of a Debentureholders Request the Trustee, subject to Section
11.02, shall exercise or take such one or more of the said remedies as the
Debentureholders Request may direct or, if such Debentureholders Request contains
no direction, as the Trustee may deem expedient.
(2) No such remedy for the enforcement of the rights of the Trustee or of the Debentureholders
shall be exclusive of or dependent on any other such remedy but any one or more of such remedies
may from time to time be exercised independently or in combination.
(3) Upon the exercising or taking by the Trustee of any such remedies whether or not a
declaration and demand have been made pursuant to Section 6.02, the principal and interest of all
Debentures then outstanding and the other moneys payable under Section 6.02 shall forthwith become
due and payable to the Trustee as though such a declaration and a demand therefor had actually been
made.
(4) All rights of action hereunder may be enforced by the Trustee without the possession of
any of the Debentures or coupons or the production thereof at the trial or other proceedings
relative thereto.
(5) No delay or omission of the Trustee or of the Debentureholders to exercise any remedy
referred to in subsection (1) shall impair any such remedy or shall be construed to be a waiver or
any default hereunder or acquiescence therein.
26
Section
6.04
SECTION 6.04.
Suits by Debentureholders.
No holder of any Debenture or coupon shall have the right
to institute any action or proceeding or to exercise any other remedy authorized by this Trust
Indenture for the purpose of enforcing any rights on behalf of the Debentureholders or for the
execution of any trust or power hereunder or for the appointment of a liquidator or receiver or for
a receiving order under bankruptcy legislation or to have the Corporation wound up or to file or
prove a claim in any liquidation or bankruptcy proceedings, unless the Trustee shall have failed to
act within a reasonable time after the Debentureholders Request referred to in Section 6.03 has
been delivered to the Trustee and any indemnity required by it under Section 11.02 has been
tendered to it; in such case, but not otherwise, any Debentureholder acting on behalf of himself
and all other Debentureholders shall be entitled to take proceedings in any court of competent
jurisdiction such as the Trustee might have taken under Section 6.03; it being understood and
intended that no one or more holders of Debentures or coupons shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by his or their action or to
enforce any right hereunder or under any Debenture or coupon, except subject to the conditions and
in the manner herein provided, and that all powers and trusts hereunder shall be exercised and all
proceedings at law shall be instituted, had and maintained by the Trustee, except only as herein
provided, and in any event for the equal benefit of all holders of all outstanding Debentures and
coupons.
SECTION 6.05.
Application of Moneys Received by Trustee.
Except as otherwise herein provided, all
moneys arising from any enforcement hereof shall be held by the Trustee and by it applied, together
with any other moneys then or thereafter in the hands of the Trustee available for the purpose, as
follows:
(a) firstly, in payment or reimbursement to the Trustee of the reasonable
remuneration, expenses, disbursement and advances of the Trustee earned, incurred or
made in the administration or execution of the trusts hereunder or otherwise in
relation to this Trust Indenture;
(b) secondly, but subject to the provisions of Section 5.06, in or towards
payment of the principal of and premium (if any) and accrued and unpaid interest on
and interest on amounts in default under the Debentures and coupons which shall then
be outstanding, in that order of priority unless otherwise directed by extraordinary
resolution and in that case in such order or priority as between principal, premium
and interest as may be directed by such extraordinary resolution;
27
Section
6.05
(c) the surplus (if any) of such moneys shall be paid to the Corporation or its
assigns.
SECTION 6.06.
Distribution of Proceeds.
Payment to holders of Debentures and coupons pursuant to
clause (b) of Section 6.05 shall be made as follows:
(1) At least 15 days notice of every such payment shall be given in the manner provided in
Article Twelve specifying the time when and the place or places where the Debentures and coupons
are to be presented and amount of the payment and application thereof as between principal, premium
and interest.
(2) Payment of any Debenture or coupon shall be made upon presentation thereof at any one of
the places specified in such notice and any such Debenture or coupon thereby paid in full shall be
surrendered, otherwise a memorandum of such payment shall be endorsed thereon; but the Trustee may
in its discretion dispense with presentation and surrender or endorsement in any special case upon
such indemnity being given as it shall deem sufficient.
(3) From and after the date of payment specified in the notice interest shall accrue only on
the amount owing on each Debenture and coupon after giving credit for the amount of the payment
specified in such notice unless it be duly presented on or after the date so specified and payment
of such amount be not made.
SECTION 6.07.
Immunity of Shareholders, etc.
No recourse under or upon any obligation, covenant or
agreement contained in this Trust Indenture, or in any Debenture or coupon issued hereunder, or
under any judgment obtained against the Corporation or by the enforcement of any assessment, or by
any legal or equitable proceeding by virtue of any constitution or statute, or otherwise, shall be
had against any shareholder, officer or director of the Corporation, or of any successor
corporation either directly or through the Corporation, or otherwise, for the payment for or to the
Trustee or any receiver or liquidator, or for or to the holder of any Debentures or coupons issued
hereunder or otherwise, of any sum that may be due and unpaid by the Corporation upon any such
Debenture or coupon; and any and all personal liability of every name and nature, whether at common
law or in equity, or by statute or by constitution or otherwise, of any such shareholder, officer
or director, by reason of the non-payment of any shares of the capital stock of the Corporation or
any act of omission or commission on his part or otherwise, for the payment for or to the Trustee
or any receiver or liquidator, or for or to the holder of any Debentures or coupons issued
hereunder or otherwise, of any sum that may remain due and unpaid upon the Debentures and coupons
issued hereunder or any of them, is hereby expressly waived
28
Section
6.07
and released as a condition of and consideration for the execution of this Trust Indenture and the
issue of such Debentures and coupons. Nothing herein or in the Debentures contained shall be taken,
however, to prevent recourse to and the enforcement of the liability of any shareholder of the
Corporation for uncalled capital, or the liability of any such shareholder upon unsatisfied calls.
29
Section
7.01
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 7.01.
Cancellation and Destruction.
All matured coupons and Debentures shall forthwith
after payment thereof be cancelled and delivered to the Trustee. All Debentures and coupons
cancelled or required to be cancelled under this or any other provision of this Trust Indenture may
be destroyed by or under the direction of the Trustee by cremation or otherwise (in the presence of
a representative of the Corporation if the Corporation shall so require) and the Trustee shall
prepare and retain a certificate of such destruction and deliver a duplicate thereof to the
Corporation.
SECTION 7.02.
Non-Presentation of Debentures and Coupons.
In case the holder of any Debenture or
coupon shall fail to present the same for payment on the date on which the principal thereof, the
premium (if any) thereon and/or the interest thereon or represented thereby becomes payable either
at maturity or on redemption or otherwise:
(a) the Corporation shall be entitled to pay to the Trustee and direct it to
set aside, or
(b) in respect of moneys in the hands of the Trustee which may or should be
applied to the payment or redemption of the Debentures, the Corporation shall be
entitled to direct the Trustee to set aside,
the principal moneys and premium (if any) and/or the interest, as the case may be, in trust
to be paid to the holder of such Debenture or coupon upon due presentation or surrender
thereof in accordance with the provisions of this Trust Indenture; and thereupon the
principal moneys and premium (if any) and/or the interest payable on or represented by each
Debenture and each coupon in respect whereof such moneys have been set aside shall be deemed
to have been paid and the holder thereof shall thereafter have no right in respect thereof
except that of receiving payment of the moneys so set aside by the Trustee (without interest
on such moneys) upon due presentation and surrender thereof, subject always to the
provisions of Section 7.04.
SECTION 7.03.
Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Trust
Indenture all moneys then held by any paying agent of the Debentures (other than the Trustee)
shall, upon written order of the Corporation, be
30
Section
7.01
repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 7.04.
Repayment of Unclaimed Moneys to Corporation.
Any moneys set aside under Section 7.02
in respect of any Debenture or coupon and not claimed by and paid to the holder thereof, as
provided in Section 7.02, within three years after the date of such setting aside shall be repaid
to the Corporation by the Trustee on demand, and thereupon the Trustee shall be released from all
further liability with respect to such moneys, and thereafter such holder shall have no rights in
respect of such Debenture or coupon except to obtain payment of such moneys (without interest
thereon) from the Corporation.
SECTION 7.05.
Release from Covenants.
Upon proof being given to the reasonable satisfaction of the
Trustee that the principal of all the Debentures and the premium, if any, thereon and interest
(including interest on amounts overdue) thereon and other moneys payable hereunder have been paid
or satisfied, or that all the outstanding Debentures having matured or having been duly called for
redemption, or the Trustee having been given irrevocable instructions by the Corporation to give
within 90 days notice of redemption of all the outstanding Debentures, such payment and/or
redemption has been duly and effectually provided for by payment to the Trustee or otherwise; and
upon payment of all costs, charges and expenses properly incurred by the Trustee in relation to
these presents and the remuneration of the Trustee, or upon provision satisfactory to the Trustee
being made therefor, the Trustee shall, at the request and at the expense of the Corporation,
execute and deliver to the Corporation such deeds or other instruments as shall be requisite to
evidence the satisfaction and discharge of the security (if any) created pursuant hereto, and to
release the Corporation from its covenants herein contained except those relating to the
indemnification of the Trustee.
31
Section
8.01
ARTICLE EIGHT
Consolidation and Amalgamation
SECTION 8.01.
General Provisions.
Nothing in this Trust Indenture shall prevent, if otherwise
permitted by law, the reorganization or reconstruction of the Corporation or the consolidation,
amalgamation or merger of the Corporation with any other corporation, including any affiliate, or
shall prevent the transfer by the Corporation of its undertaking and assets as a whole or
substantially as a whole to another corporation, including any affiliate, lawfully entitled to
acquire and operate the same, provided that the conditions of this Article Eight be observed, and
provided also that (a) no condition or event shall exist as to the Corporation or such successor or
assign either at the time of or immediately after such reorganization, reconstruction,
consolidation, amalgamation, merger or transfer and after giving full effect thereto or immediately
after such successor or assign shall become liable to pay the principal moneys, premium, if any,
and interest and other moneys payable hereunder, which constitutes or would constitute a default or
an event of default hereunder, and (b) every such successor or assign shall, as a part of such
reorganization, reconstruction, consolidation, amalgamation, merger or transfer and in
consideration thereof enter into and execute an indenture or indentures supplemental hereto in
favour of the Trustee whereby such successor or assign covenants:
(1) To pay punctually when due the principal moneys, premium, if any, interest and other
moneys payable hereunder;
(2) To perform and observe punctually all the obligations of the Corporation under these
presents and under and in respect of all outstanding Debentures; and
(3) To observe and perform each and every covenant, stipulation, promise, undertaking,
condition and agreement of the Corporation herein contained as fully and completely as if it had
itself executed this Trust Indenture as Party of the First Part hereto and had expressly agreed
herein to observe and perform the same.
Provided that every such reorganization, reconstruction, consolidation, amalgamation, merger
or transfer shall be made on such terms and at such times and otherwise in such manner as shall be
approved by the Corporation and by the Trustee as being in no way prejudicial to the interests of
the Debentureholders and, upon such approval, the Trustee shall facilitate the same in all
respects, and may give such consents and sign, execute or join in such documents and do such acts
as in its discretion may be thought advisable in order that such reorganization, reconstruction,
32
Section
8.01
consolidation, amalgamation, merger or transfer may be carried out, and thereupon the Corporation
may be released and discharged from liability under this Trust Indenture and the Trustee may
execute any document or documents which it may be advised is or are necessary or advisable for
effecting or evidencing such release and discharge and the opinion of counsel as hereinafter
mentioned shall be full warrant and authority to the Trustee for so doing. The Corporation shall
furnish to the Trustee an opinion of counsel as to the legality of any action proposed to be taken
and as to the validity of any action taken pursuant to the provisions contained in this section,
and the Trustee shall incur no liability by reason of reliance thereon.
SECTION 8.02.
Status of Successor Corporation.
In case of any reorganization, reconstruction,
consolidation, amalgamation or merger as aforesaid, the corporation formed by such consolidation or
with which the Corporation shall have been amalgamated or merged, upon executing an indenture or
indentures as provided in Section 8.01, shall succeed to and be substituted for the Corporation
(which may then be wound up, if so desired by its shareholders), with the same effect as if it had
been named herein as the Party of the First Part hereto, and shall possess and may exercise each
and every right of the Corporation hereunder.
33
Section
9.01
ARTICLE NINE
Meetings of Debentureholders
SECTION 9.01.
Right to Convene Meeting.
The Trustee may at any time and from time to time shall, on
receipt of a written request of the Corporation or a Debentureholders Request and upon being
indemnified to its reasonable satisfaction by the Corporation or by the Debentureholders signing
such Debentureholders Request against the costs which may be incurred in connection with the
calling and holding of such meeting, convene a meeting of the Debentureholders. In the event of the
Trustee failing within 30 days after receipt of such request and indemnity to give notice convening
such meeting, the Corporation or such Debentureholders, as the case may be, may convene such
meeting. Every such meeting shall be held in the City of Montreal, Province of Quebec, or at such
other place as may be approved or determined by the Trustee.
SECTION 9.02.
Notice.
At least 30 days notice of any meeting shall be given to the
Debentureholders in the manner provided in Article Twelve and a copy thereof shall be sent by post
to the Trustee unless the meeting has been called by it and to the Corporation unless the meeting
has been called by it. Such notice shall state the time when and the place where the meeting is to
be held and shall state briefly the general nature of the business to be transacted thereat and it
shall not be necessary for any such notice to set out the terms of any resolution to be proposed or
any of the provisions of this Article.
SECTION 9.03.
Chairman.
Some person, who need not be a Debentureholder, nominated in writing by the
Trustee shall be chairman of the meeting and if no person is no nominated, or if the person so
nominated is not present within fifteen minutes from the time fixed for the holding of the meeting,
the Debentureholders present in person or by proxy shall choose some person present to be chairman.
SECTION 9.04.
Quorum.
Subject to the provisions of Section 9.13:
(a) at any meeting of the Debentureholders a quorum shall consist of
Debentureholders present in person or by proxy and representing at least 25% in
principal amount of the outstanding Debentures;
(b) if a quorum of the Debentureholders shall not be present within half-an-
hour from the time fixed for holding any meeting, the meeting, if convened by the
Debentureholders or on a Debentureholders Request, shall be dissolved, but if
34
Section
9.04
otherwise convened the meeting shall stand adjourned without notice to the same day
in the next week (unless such day is a non-business day in which case it shall stand
adjourned to the next following business day thereafter) at the same time and place,
unless the chairman shall appoint some other place, day and/or time of which not
less than seven (7) days notice shall be given in the manner provided in Article
Twelve; and
(c) at the adjourned meeting the Debentureholders present in person or by proxy
shall form a quorum and may transact the business for which the meeting was
originally convened notwithstanding that they may not represent 25% in principal
amount of the outstanding Debentures.
SECTION 9.05.
Power to Adjourn.
The chairman of any meeting at which a quorum of the
Debentureholders is present may with the consent of the holders of a majority in principal amount
of the Debentures represented thereat adjourn any such meeting and no notice of such adjournment
need be given except such notice, if any, as the meeting may prescribe.
SECTION 9.06.
Show of Hands.
Every question submitted to a meeting shall be decided in the first
place by a majority of the votes given on a show of hands except that votes on extraordinary
resolutions shall be given in the manner hereinafter provided. At any such meeting, unless a poll
is duly demanded as herein provided, a declaration by the chairman that a resolution has been
carried or carried unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
SECTION 9.07.
Poll.
On every extraordinary resolution, and on any other question submitted to a
meeting when demanded by the chairman or by any Debentureholder after a vote by a show of hands, a
poll shall be taken in such manner as the chairman shall direct. Questions other than extraordinary
resolutions shall, if a poll be taken, be decided by the votes of the holders of more than 50% in
principal amount of the Debentures represented at the meeting and voted on the poll.
SECTION 9.08.
Voting.
On a show of hands every person who is present and entitled to vote, whether
as a Debentureholder or as proxy for one or more absent Debentureholders or both, shall have one
vote. On a poll each Debentureholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each $1,000 principal amount of
Debentures of which he shall then be the holder. Each holder of any Debentures payable in a
currency other than Canadian dollars shall have one vote for every $1,000 principal amount of
35
Section
9.08
Debentures computed after conversion of the principal amount thereof at the applicable spot buying
rate of exchange for such currency as reported by the Bank of Canada at the close of business on
the business day next preceding such meeting. Any fractional amount resulting from such computation
shall be rounded to the nearest $1,000. A proxy need not be a Debentureholder. In the case of joint
registered holders of a Debenture, any one of them present in person or by proxy at the meeting may
vote in the absence of the other or others; but in case more than one of them be present in person
or by proxy, they shall vote as one in respect of the Debentures of which they are joint registered
holders.
SECTION 9.09.
Regulations.
The Trustee or the Corporation with the approval of the Trustee may from
time to time make and from time to time vary such regulations as it shall from time to time think
fit:
(a) for the issue of voting certificates
(i) by any bank, trust company or other depositary approved by the
Trustee certifying that specified unregistered Debentures have been
deposited with it by a named holder and will remain on deposit until after
the meeting, or
(ii) by any bank, trust company, insurance company, governmental
department or agency approved by the Trustee certifying that it is the
holder of specified unregistered Debentures and will continue to hold the
same until after the meeting;
which voting certificates shall entitle the holders named therein to be present and vote at
any such meeting and at any adjournment thereof to appoint a proxy or proxies to represent
them and vote for them at any such meeting and at any adjournment thereof, in the same
manner and with the same effect as though the holders so named in such voting certifies were
the actual bearers of the Debentures specified therein;
(b) for the deposit of voting certificates and/or instruments appointing
proxies at such place as the Trustee, the Corporation or the Debentureholders
convening the meeting, as the case may be, may in the notice convening the meeting
direct; and
(c) for the deposit of voting certificates and/or instruments appointing
proxies at some approved place or places other than the place at which the
36
Section
9.09
meeting is to be held and enabling particulars of such voting certificates and/or
instruments appointing proxies to be mailed, cabled or otherwise transmitted before
the meeting to the Corporation or to the Trustee at the place where the same is to
be held and for the voting of proxies so deposited as though the instruments
themselves were produced at the meeting.
Any regulations so made shall be binding and effective and the votes given in accordance therewith
shall be valid and shall be counted. Save as such regulations may provide, the only persons who
shall be recognized at any meeting as the holders of any Debentures, or as entitled to vote or be
present at the meeting in respect thereof, shall be persons who produce unregistered Debentures at
the meeting and the holders of registered Debentures and persons whom holders of registered
debentures have by instrument in writing duly appointed as their proxies.
SECTION 9.10.
Corporation and Trustee may be Represented.
The Corporation and the Trustee, by their
respective officers and directors, and the legal advisers of the Corporation and the Trustee may
attend any meeting of the Debentureholders, but shall have no vote as such.
SECTION 9.11.
Powers Exercisable by Extraordinary Resolution.
In addition to all other powers
conferred upon them by any other provisions of this Trust Indenture or by law, a meeting of the
Debentureholders shall have the following powers exercisable from time to time by extraordinary
resolution:
(a) power to sanction any scheme for the reconstruction or reorganization of
the Corporation or for the consolidation, amalgamation or merger of the Corporation
with any other corporation, including any subsidiary, or for the selling or leasing
of the undertaking, property and assets of the Corporation or a material part
thereof, provided that no such sanction shall be necessary for a reconstruction,
reorganization, consolidation, amalgamation or merger or transfer under the
provisions of Article Eight hereof;
(b) power to require the Trustee to exercise or refrain from exercising any of
the powers conferred upon it by this Trust Indenture or to waive any default on the
part of the Corporation, other that non-payment of any principal moneys, premium or
interest, upon such terms as may be decided upon;
(c) power to sanction the release of the Corporation and of the whole or any
part of its property from the charges which may be created hereunder;
37
Section
9.11
(d) power to remove the Trustee from office and to appoint a new Trustee or
Trustees;
(e) power to sanction any change whatsoever of any provision of the Debentures
or of this Trust Indenture and any modification, alteration, abrogation, compromise
or arrangement of or in respect of the rights of the Debentureholders against the
Corporation or against its property, whether such rights shall arise under the
provisions of this Trust Indenture or otherwise;
(f) power to sanction the exchange of the Debentures for or the conversion
thereof into shares, bonds, debentures, or other securities of the Corporation or of
any company formed or to be formed;
(g) power to assent to any compromise or arrangement by the Corporation with
any creditor, creditors or class or classes of creditors or with the holders of any
shares or securities of the Corporation;
(h) power to authorize the Trustee, in the event of the Corporation making an
authorized assignment or proposal or a custodian or trustee being appointed under
bankruptcy legislation or a liquidator being appointed, for and on behalf of the
Debentureholders, and in addition to any claim or debt proved or made for its own
account as Trustee hereunder, to file and prove a claim or debt against the
Corporation and its property for an amount equivalent to the aggregate amount which
may be payable in respect of the Debentures, value security and vote such claim or
debt at meetings of creditors and generally act for and on behalf of the
Debentureholders in such proceedings as such resolution may provide;
(i) power to restrain any holder of any Debenture or coupon outstanding
hereunder from taking or instituting any suit, action or proceeding for the
execution of any trust or power hereunder or for the appointment of a liquidator or
receiver or trustee in bankruptcy or to have the Corporation wound up or for any
other remedy hereunder and to direct such holder of any Debenture or coupon to waive
any default or defaults by the Corporation on which any suit or proceeding is
founded;
(j) power, subject to the provisions of Section 6.02 and Section 6.04, to
direct any Debentureholder or Debentureholders bringing any suit, action or
proceeding and the Trustee to waive the default in respect of which such action,
suit or other proceeding shall have been brought;
38
Section
9.11
(k) power to require the Trustee to make a declaration under the provisions of
Section 6.02 hereof and/or to proceed to enforce any remedy available hereunder, but
subject always to compliance with the provisions of Section 6.03 hereof; and
(l) power to assent to any modification of or change in or addition to or
omission from the provisions contained in this Trust Indenture which shall be agreed
to by the Corporation and to authorize the Trustee to concur in and execute any
indenture supplemental to this Trust Indenture embodying any such modification,
change, addition or omission or any deeds, documents or writings authorized by such
resolution.
SECTION 9.12.
Powers Cumulative.
It is hereby declared and agreed that any one or more of the
powers and/or any combination of the powers in this Trust Indenture stated to be exercisable by the
Debentureholders by extraordinary resolution or otherwise may be exercised from time to time and
the exercise of any one or more of such powers or any combination of powers from time to time shall
not be deemed to exhaust the right of the Debentureholders to exercise such power or powers or
combination of powers then or any power or powers or combination of powers thereafter from time to
time.
SECTION 9.13.
Meaning of Extraordinary Resolution.
(1) The expression extraordinary resolution when used in this Trust Indenture means, subject
as hereinafter in this section and in sections 9.15 and 9.17 provided, a resolution proposed to be
passed as an extraordinary resolution at a meeting of Debentureholders duly convened for the
purpose and held in accordance with the provisions of this Article at which the holders of more
than 50% in principal amount of the Debentures then outstanding are present in person or by proxy
and passed by the favourable votes of the holders of not less than 66
2/3
% of the
principal amount of Debentures represented at the meeting and voted on a poll upon such resolution.
(2) If at any such meeting the holders of more than 50% in principal amount of the Debentures
outstanding are not present in person or by proxy within half-an-hour after the time appointed for
the meeting, then the meeting, if convened by Debentureholders or on a Debentureholders Request,
shall be dissolved; but if otherwise convened the meeting shall stand adjourned to such day, being
not less than 21 nor more than 60 days later, and to such place and time as may be appointed by the
chairman. Not less than 10 days notice shall be given of the time and place of such adjourned
meeting in the manner provided in Article Twelve. Such notice shall state
39
Section
9.13
that at the adjourned meeting the Debentureholders present in person or by proxy shall form a
quorum but it shall not be necessary to set forth the purposes for which the meeting was originally
called or any other particulars. At the adjourned meeting the Debentureholders present in person or
by proxy shall form a quorum and may transact the business for which the meeting was originally
convened and a resolution proposed at such adjourned meeting and passed by the requisite vote as
provided in subsection (1) of this section shall be an extraordinary resolution within the meaning
of this Trust Indenture, notwithstanding that the holders of more than 50% in principal amount of
the Debentures then outstanding are not present in person or by proxy at such adjourned meeting.
(3) Votes on an extraordinary resolution shall always be given on a poll and no demand for a
poll on an extraordinary resolution shall be necessary.
SECTION 9.14.
Minutes.
Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to time provided for that purpose
by the Trustee at the expense of the Corporation, and any such minutes as aforesaid, if signed by
the chairman of the meeting at which such resolutions were passed or proceedings had, or by the
chairman of the next succeeding meeting of the Debentureholders, shall be
prima facie
evidence of
the matters therein stated and, until the contrary is proved, every such meeting, in respect of the
proceedings of which minutes shall have been made, shall be deemed to have been duly held and
convened, and all resolutions passed thereat or proceedings had, to have been duly passed and had.
SECTION 9.15.
Instruments in Writing.
All actions that may be taken and all powers that may be
exercised by the Debentureholders at a meeting held as hereinbefore in this Article provided may
also be taken and exercised by the holders of not less than 66
2/3
% in principal amount
of all of the outstanding Debentures by an instrument in writing signed in one or more counterparts
and the expression extraordinary resolution when used in this Trust Indenture shall include an
instrument so signed.
SECTION 9.16.
Binding Effect of Resolutions.
Subject to the provisions of Section 9.17, every
resolution and every extraordinary resolution passed in accordance with the provisions of this
Article at a meeting of Debentureholders shall be binding upon all the Debentureholders, whether
present at or absent from such meeting, and every instrument in writing signed by Debentureholders
in accordance with Section 9.15 shall be binding upon all the Debentureholders, whether signatories
thereto or not, and each and every Debentureholder and the Trustee (subject to the
40
Section
9.16
provisions for its indemnity herein contained) shall be bound to give effect accordingly to every
such resolution, extraordinary resolution and instrument in writing.
SECTION 9.17.
Serial Meetings.
(1) If any business to be transacted at a meeting of Debentureholders, or any action to be
taken or power to be exercised by instrument in writing under Section 9.15, especially affects the
rights of the holders of Debentures of one or more series or maturities in a manner or to an extent
substantially differing from that in or to which it affects the rights of the holders of Debentures
of any other series or maturity (as to which an opinion of counsel shall be binding on all
Debentureholders, the Trustee and the Corporation for all purposes hereof) then:
(a) reference to such fact, indicating each series or maturity so especially
affected, shall be made in the notice of such meeting and the meeting shall be and
is herein called a serial meeting; and
(b) the holders of Debentures of a series or maturity so especially affected
shall not be bound by any action taken at a serial meeting or by instrument in
writing under Section 9.15 unless in addition to compliance with the other
provisions of this Article:
(i) at such serial meeting:
(A) there are present in person or by proxy holders of a least
25% (or for the purpose of passing an extraordinary resolution more
than 50%) in principal amount of the outstanding Debentures of such
series or maturity, subject to the provisions of this Article as to
adjourned meetings; and
(B) the resolution is passed by the favourable votes of the
holders of more than 50% (or in the case of an extraordinary
resolution not less that 66
2/3
%) in principal amount of
Debentures of such series or maturity voted on the resolution; or
(ii) in the case of action taken or power exercised by instrument in
writing under Section 9.15, such instrument is signed in one or more
counterparts by the holders of not less that 66
2/3
% in principal
amount of the outstanding Debentures of such series or maturity.
41
Section
9.16
(2) If in the opinion of counsel any business to be transacted at any meeting, or any action
to be taken or power to be exercised by instrument in writing under Section 9.15, does not
adversely affect the rights of the holders of Debentures of one or more particular series or
maturities, the provisions of this Article Nine shall apply as if the debentures of such series or
maturity were not outstanding and no notice of any such meeting need be given to the holders of
Debentures of such series or maturity. Without limiting the generality of the foregoing, a proposal
to modify or terminate any covenant or agreement which by its terms is effective only so long as
Debentures of a particular series or maturity are outstanding shall be deemed not to adversely
affect the rights of the holders of Debentures of any other series or maturity.
(3) A proposal (i) to extend the maturity of Debentures of any particular series or maturity
or reduce the principal amount thereof or the rate of interest or redemption premium thereon, (ii)
to modify or terminate any covenant or agreement which by its terms is effective only so long as
Debentures of a particular series are outstanding, or (iii) to reduce with respect to holders of
Debentures of any particular series any percentage stated in Section 1.01, 9.04, 9.07, 9.13 or 9.15
or in this Section 9.17, shall be deemed to especially affect the rights of the holders of
Debentures of such series or maturity, as the case may be, in a manner substantially differing from
that in which it affects the rights of holders of Debentures of any other series or maturity,
whether or not a similar extension, reduction, modification or termination is proposed with respect
to Debentures of any or all other series and maturities.
42
Section
10.01
ARTICLE TEN
Supplemental Indentures
SECTION 10.01.
Execution of Supplemental Indentures.
From time to time the Corporation (when
authorized by its directors) and the Trustee may, subject to the provisions of these presents, and
they shall, when so directed by these presents, execute and deliver by their proper officer or
officers, indentures or other instruments supplemental hereto, which thereafter shall form part
hereof, for any one or more or all of the following purposes:
(a) creating any subsequent series of Debentures and establishing the terms of
any subsequent series of Debentures and the forms and denominations in which they
may be issued as provided in Article Two;
(b) if and whenever required by any provision hereof, hypothecating,
mortgaging, pledging, assigning, transferring, assuring and confirming to or vesting
in the Trustee or charging in favour of the Trustee the undertaking, property and
assets then owned or thereafter acquired by the Corporation, or any part thereof,
and adding to the provisions hereof such additional covenants, enforcement
provisions and release provisions (if any) as, in the opinion of counsel, are
necessary or advisable in the premises, provided that the same are not in the
opinion of the Trustee prejudicial to the interests of the Debentureholders;
(c) adding to the covenants of the Corporation herein contained for the
protection of the holders of the Debentures, or of the Debentures of any series and
providing for events of default in addition to those specified in Article Six;
(d) evidencing the succession of successor companies to the Corporation and the
covenants of and obligations assumed by such successor companies in accordance with
the provisions of Article Eight;
(e) giving effect to any extraordinary resolution passed as provided in Article
Nine;
(f) adding to or altering the provisions hereof in respect of the registration
and transfer of Debentures, making provision for the issue of Debentures in forms or
denominations other than those herein provided for and for the exchange of
Debentures of different forms and denominations, and making any modifications
43
Section
10.01
in the forms of the Debentures and coupons which in the opinion of the Trustee do
not affect the substance thereof;
(g) making any additions to, deletions from or alterations of the provisions of
this Trust Indenture which the Corporation may deem necessary or advisable in order
to facilitate the sale of the Debentures and which, in the opinion of the Trustee,
do not adversely affect in any substantial respect the interests of the holders of
the Debentures, or any series or maturity thereof then outstanding, including
without limiting the generality of the foregoing such additions, deletions and
alterations, including provision for the appointment of an additional trustee or a
co-trustee in any jurisdiction, as would be required to comply with the provisions
relating to trust indentures contained in any Corporations Act, Securities Act,
Trust Indenture Act or similar legislation in any jurisdiction in which the
Corporation may desire to sell the Debentures;
(h) making any additions to, deletions from or alterations of the provisions of
this Trust Indenture, and in particular Section 5.09, Section 6.01 and Article
Eleven hereof, which in the opinion of counsel may from time to time be necessary or
advisable to conform the same to applicable legislation as that term is defined in
subsection (1) of Section 11.01; and
(i) for any other purpose not inconsistent with the terms of this Trust
Indenture, including the correction or rectification of any ambiguities, defective
provisions, errors or omissions herein, provided that in the opinion of the Trustee
the rights of the Trustee or of the Debentureholders are in no way prejudiced
thereby.
44
Section
11.01
ARTICLE ELEVEN
Concerning the Trustee
SECTION 11.01.
Trust Indenture Legislation.
(1) In this Article the term applicable legislation means the provisions, if any, of any
statute of Canada or a province thereof, and of regulations under any such statute, relating to
trust indentures and to the rights, duties and obligations of trustees under trust indentures and
of corporations issuing debt obligations under trust indentures, to the extent that such provisions
are at the time in force and applicable to this Trust Indenture.
(2) If and to the extent that any provision of this Trust Indenture limits, qualifies or
conflicts with a mandatory requirement of applicable legislation, such mandatory requirement shall
prevail.
(3) The Corporation and the Trustee agree that each will at all times in relation to this
Trust Indenture and any action to be taken hereunder, observe and comply with and be entitled to
the benefits of applicable legislation.
SECTION 11.02.
Rights and Duties of Trustee.
(1) In the exercise of the rights, duties and obligations prescribed or conferred by the terms
of this Trust Indenture, the Trustee shall act honestly and in good faith with a view to the best
interests of the holders of the Debentures and shall act with prudence and diligence.
(2) Subject only to subsection (1) of this Section 11.02, the obligation of the Trustee to
commence or continue any act, action or proceeding for the purpose of enforcing any rights of the
Trustee or the Debentureholders hereunder shall be conditional upon the Debentureholders
furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or
continue such act, action or proceeding and indemnity reasonably satisfactory to the Trustee to
protect and hold harmless the Trustee against the costs, charges and expenses and liabilities to be
incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions
contained in this Trust Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties or in the exercise of
any of its rights or powers unless indemnified as aforesaid.
45
Section
11.02
(3) The Trustee may, before commencing or at any time during the continuance of any such act,
action or proceeding, require the Debentureholders at whose instance it is acting to deposit with
the Trustee the Debentures held by them, for which Debentures the Trustee shall issue receipts.
(4) Every provision of this Trust Indenture that by its terms relieves the Trustee of
liability or entitles it to rely upon any evidence submitted to it, is subject to the provisions of
applicable legislation and of this Section 11.02 and of Section 11.03.
SECTION 11.03.
Evidence, Experts and Advisers.
(1) In addition to the reports, certificates, opinions and other evidence required by this
Trust Indenture, the Corporation shall furnish to the Trustee such additional evidence of
compliance with any provision hereof, and in such form, as may be prescribed by applicable
legislation or as the Trustee may reasonably require by written notice to the Corporation.
(2) In the exercise of its rights, duties and obligations, the Trustee may, if it is acting in
good faith, rely as to the truth of the statements and the accuracy of the opinions expressed
therein, upon statutory declarations, opinions, reports, certificates or other evidence referred to
in subsection (1) of this Section 11.03 provided that such evidence complies with applicable
legislation and that the Trustee examines the same in order to determine whether such evidence
indicates compliance with the applicable requirements of this Trust Indenture.
(3) Whenever applicable legislation requires that evidence referred to in subsection (1) of
this Section 11.03 be in the form of a statutory declaration, the Trustee may accept such statutory
declaration in lieu of a certificate of the Corporation required by any provision hereof. Any such
statutory declaration may be made by one or more of the chairman of the board, the president, any
vice-president, the corporate secretary, the corporate treasurer, any assistant corporate
secretary, assistant corporate treasurer or director of the Corporation.
(4) Proof of the execution of an instrument in writing, including a Debentureholders Request,
by any Debentureholder may be made by the certificate of a notary public, or other officer with
similar powers, that the person signing such instrument acknowledged to him the execution thereof,
or by an affidavit of a witness to such execution or in any other manner which the Trustee may
consider adequate.
46
Section
11.03
(5) The Trustee may employ or retain such counsel, accountants, engineers, appraisers or other
experts or advisers as it may reasonably require for the purpose of discharging its duties
hereunder and shall not be responsible for any misconduct on the part of any of them.
SECTION 11.04.
Documents, Moneys, etc., Held by Trustee.
Any securities, documents of title or
other instruments that may at any time be held by the Trustee subject to the trusts hereof may be
placed in the deposit vaults of the Trustee or of any Canadian chartered bank or deposited for
safekeeping with any such bank. Pending the application or withdrawal of any moneys so held under
any provision of this Trust Indenture, the Trustee, unless it is herein otherwise expressly
provided, may deposit the same in the name of the Trustee in any Canadian chartered bank at the
rate of interest (if any) then current on similar deposits or, if so directed by written order of
the Corporation, shall (i) deposit such moneys in the deposit department of the Trustee or any
other loan or trust company authorized to accept deposits under the laws of Canada or a province
thereof, or (ii) invest such moneys in securities issued or guaranteed by the Government of Canada
or a province thereof or in obligations, maturing not more than one year from the date of
investment, of any Canadian chartered bank or loan or trust company. Unless an event of default
shall have occurred and be continuing, all interest or other income received by the Trustee in
respect of such deposits and investments shall belong to the Corporation.
SECTION 11.05.
Notices of Events of Default.
The Trustee may in its discretion give notice to the
Debentureholders of all events of default which have occurred hereunder and are known to the
Trustee, but the Trustee shall be under no obligation to do so.
SECTION 11.06.
Action by Trustee to Protect Interests.
The Trustee shall have power to institute
and to maintain such actions and proceedings as it may consider necessary or expedient to preserve,
protect or enforce its interests and the interests of the Debentureholders.
SECTION 11.07.
Trustee not Required to give Security.
The Trustee shall not be required to give any
bond or security in respect of the execution of the trusts and powers of this Trust Indenture or
otherwise in respect of the premises.
SECTION 11.08.
Protection of Trustee.
By way of supplement to the provisions of any law for the
time being relating to trustees, it is expressly declared and agreed as follows:
47
Section
11.08
(1) The Trustee shall not be liable for or by reason of any failure or defect of title to or
any lien, charge or encumbrance upon the property of the Corporation or for or by reason of any
statements of fact or recitals in this Trust Indenture or in the Debentures (except in the
certificate of the Trustee thereon) or required to verify the same, but all such statements or
recitals are and shall be deemed to be made by the Corporation.
(2) Nothing herein contained shall impose any obligation on the Trustee to see to or require
evidence of the deposit, registration or recording (or renewal thereof) of this Trust Indenture or
any instrument ancillary or supplemental hereto.
(3) The Trustee shall not be bound to give notice to any person or persons of the execution
hereof.
(4) The Trustee shall not incur any liability or responsibility whatever or be in any way
responsible for the consequence of any breach on the part of the Corporation of any of the
covenants herein contained or of any acts of the agents or servants of the Corporation.
(5) The Trustee, in its personal or any other capacity, may buy, lend upon and deal in shares
in the capital of the Corporation and in the Debentures and generally may contract and enter into
financial transactions with the Corporation or any affiliate without being liable to account for
any profit made thereby.
SECTION 11.09.
Replacement of Trustee.
The Trustee may resign its trust and be discharged from all
further duties and liabilities hereunder by giving to the Corporation three months notice in
writing or such shorter notice as the Corporation may accept as sufficient. The Debentureholders by
extraordinary resolutions shall have power at any time to remove the Trustee and to appoint a new
Trustee. In the event of the Trustee resigning or being removed as aforesaid or being dissolved,
becoming bankrupt, going into liquidation or otherwise becoming incapable of acting hereunder, the
Corporation shall forthwith appoint a new Trustee unless a new Trustee has already been appointed
by the Debentureholders; failing such appointment by the Corporation the retiring Trustee or any
Debentureholder may apply to a Judge of the Superior Court of Québec, on such notice as such Judge
may direct, for the appointment of a new Trustee; but any new Trustee so appointed by the
Corporation or by the Court shall be subject to removal as aforesaid by the Debentureholders. Any
new Trustee appointed under any provision of this section shall be a corporation authorized to
carry on the business of a trust company in the Province of Québec. On any new appointment, the new
Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been
originally named herein as Trustee without any further
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Section
11.09
assurance, conveyance, act or deed; but there shall be immediately executed, at the expense of the
Corporation, all such conveyances or other instruments as may, in the opinion of counsel, be
necessary or advisable for the purpose of assuring the same to the new Trustee.
SECTION 11.10.
Conflict of Interest.
The Trustee represents that at the time of the execution and
delivery hereof no material conflict of interest exists in the Trustees role as a fiduciary
hereunder and agrees that in the event of a material conflict of interest, arising hereafter it
will, within ninety (90) days after ascertaining that it has such material conflict of interest,
either eliminate the same or resign its trust hereunder.
SECTION 11.11.
Fondé de pouvoir.
To the extent that the same may be necessary to comply with the
provisions of Article 2692 of the Civil Code of Québec the Trustee agrees to act as, and shall have
the powers of,
fondé de pouvoir
of the holders from time to time of debentures issued and to be
issued hereunder, provided that the powers exercised and the liabilities assumed by the Trustee as
fondé de pouvoir
shall in all respects be limited to those set forth in this Trust Indenture as the
powers and liabilities of the Trustee hereunder.
SECTION 11.12.
Acceptance of Trust.
The Party of the Second Part hereby accepts the trusts in this
Trust Indenture declared and provided for and agrees to perform the same upon the terms and
conditions herein set forth.
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Section
12.02
ARTICLE TWELVE
Notices
SECTION 12.01.
Notice to Debentureholders.
Unless herein otherwise expressly provided, any notice
to be given hereunder to Debentureholders shall be deemed to be validly given:
(a) to the holders of registered Debentures if such notice is sent by
unregistered surface or air mail, postage prepaid, addressed to such holders at
their respective addresses appearing on the register maintained under Article Three;
and if in the case of joint holders of any Debentures more than one address appears
in the register in respect of such joint holding, such notice shall be addressed
only to the first address so appearing; and
(b) to the holders of unregistered Debentures if such notice is published once
in each of the cities of Toronto and Montreal, each such publication to be made in a
daily newspaper in the English or French language, or both languages, of general
circulation in the designated city and approved by the Trustee; provided that in the
case of notice convening a meeting of Debentureholders, the Trustee may require such
additional publications of such notice, in the same or in other cities or both, as
it may deem necessary for the reasonable protection of the Debentureholders.
Any notice so given by mail shall be deemed to have been given on the day of mailing. Any
notice so given by publication shall be deemed to have been given when such notice shall
have been published once in each of the cities in which publication thereof was required
under the foregoing provisions. In determining under any provision hereof the date when
notice of any meeting, redemption or other event must be given, the date of giving the
notice shall be included and the date of the meeting, redemption or other event shall be
excluded. Accidental error or omission in giving notice or accidental failure to mail notice
to any Debentureholder shall not invalidate any action or proceeding founded thereon.
SECTION 12.02.
Notice to the Trustee.
Any notice to the Trustee under the provisions of this Trust
Indenture shall be valid and effective if delivered to an officer of the Trustee or if sent by
registered mail, postage prepaid, addressed to the Trustee at its principal office in the City of
Montréal, Province of Québec. Notice by mail shall be deemed to have been effectively given
forty-eight (48) hours after the time of mailing.
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Section
12.03
SECTION 12.03.
Notice to the Corporation.
Any notice to the Corporation under the provisions of
this Trust Indenture shall be valid and effective if delivered to the Corporate Secretary of the
Corporation or if sent by registered mail, postage prepaid, addressed to the Corporate Secretary of
the Corporation at 1050, côte du Beaver Hall, Montréal, Québec. The Corporation may from time to
time notify the Trustee of a change in address which thereafter, until changed by like notice,
shall be the address of the Corporation for all purposes of this Trust Indenture. Notice by mail
shall be deemed to have been effectively given forty-eight (48) hours after the time of mailing.
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Section
13.01
ARTICLE THIRTEEN
Execution
SECTION 13.01.
Counterparts and Formal Date.
This Trust Indenture may be executed in several
counterparts, each of which so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument and notwithstanding their date of execution
shall be deemed to bear date as of April 17, 1996.
IN WITNESS WHEREOF the parties hereto have declared that they have required that these
presents be in the English language and have executed these presents under their respective
corporate seals and the hands of their proper officer or officers in that behalf.
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BELL CANADA
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/s/
P.G. Bonin
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by:
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/s/ V.
W. Salvati
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Witness
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(Seal)
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MONTREAL TRUST COMPANY COMPAGNIE MONTRÉAL
TRUST
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/s/
M. Longpré
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by:
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/s/
Guy LEspérance
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Witness
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/s/ E.
Reinhold
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and:
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/s/
Louis Lochhead
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Witness
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(Seal)
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