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Form 20-F
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Form 40-F
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X
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Document
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1.
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Trust Indenture, dated September 7, 2016
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This Report on Form 6-K is incorporated by reference into the Registration Statements on Form S-8 of the Registrant, which were originally filed with the Securities and Exchange Commission on March 28, 2002 (File No. 333-85294), October 21, 2002 (File No. 333-100684), April 28, 2008 (File No. 333-150470), October 3, 2011 (File No. 333-177149), July 10, 2013 (File No. 333-189880), December 20, 2013 (File Nos. 333-192986 and 333-192987), July 25, 2014 (File No. 333-197636), August 20, 2015 (File No. 206480) and February 12, 2016 (File No. 333-209525).
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Page
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ARTICLE 1 INTERPRETATION
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2
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1.1
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Definitions
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2
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1.2
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Interpretation
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14
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1.3
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Accounting Terms
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14
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1.4
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Headings and Table of Contents
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14
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1.5
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Section and Schedule References
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14
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1.6
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Governing Law
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15
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1.7
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Currency
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15
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1.8
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Non-Business Days
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15
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1.9
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Time
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15
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1.10
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Independence of Covenants
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15
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1.11
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Form of Documents Delivered to Trustee
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15
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1.12
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Acts of Holders
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16
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1.13
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Interest Payments and Calculations
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17
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1.14
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English Language
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17
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1.15
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Successors and Assigns
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17
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1.16
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Severability Clause
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17
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1.17
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Benefits of Indenture
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18
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1.18
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Unclaimed Debentures
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18
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1.19
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Schedules
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18
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1.20
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Benefits of Indenture through Trustee
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18
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1.21
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Form of Consideration
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18
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ARTICLE 2 THE DEBENTURES
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19
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2.1
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Limit of Issue and Designation of Debentures
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19
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2.2
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Form and Terms of Debentures
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19
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2.3
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Interest
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19
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2.4
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Prescription
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20
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2.5
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Issue of Debentures
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20
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2.6
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Execution
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21
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2.7
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Certification by Trustee
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21
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2.8
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Registration of Exchanges
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21
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2.9
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Persons Entitled to Payment
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22
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2.10
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Payment of Principal and Interest on Definitive Debentures
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22
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2.11
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Book-Based System
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23
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2.12
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Discontinuation of Book-Based System
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24
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2.13
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Payments of Principal and Interest for Book-Entry Only Debentures
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25
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2.14
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Rank
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25
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2.15
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Register and Transfer
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25
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2.16
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Additional Amounts
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28
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2.17
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Cancellation of Debentures
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30
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2.18
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Mutilated, Lost, Stolen or Destroyed Debentures
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31
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2.19
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Access to Lists of Holders
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32
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2.20
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Canadian Private Placement Legend
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32
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2.21
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U.S. Legend on Debentures
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32
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2.22
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Payment in Shares
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33
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ARTICLE 3 REPURCHASE AND CANCELLATION OF DEBENTURES
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33
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3.1
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Purchase of Debentures
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33
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3.2
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Repurchase of Debentures at Option of the Holder upon a Change of Control
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34
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3.3
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Effect of Change of Control Repurchase Notice
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36
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3.4
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Deposit of Change of Control Repurchase Price
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37
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3.5
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Repayment to the Issuer
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38
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3.6
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Debentures Purchased in Part
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38
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3.7
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[Intentionally Deleted]
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38
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3.8
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[Intentionally Deleted]
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38
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3.9
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[Intentionally Deleted]
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38
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3.10
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[Intentionally Deleted]
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38
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3.11
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[Intentionally Deleted]
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38
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3.12
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Compliance with Applicable Securities Laws upon Purchase of Debentures
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38
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3.13
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Cancellation of Purchased Debentures
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38
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ARTICLE 4 SUBORDINATION OF DEBENTURES
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39
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4.1
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Applicability of Article
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39
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4.2
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Order of Payment
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39
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4.3
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Subrogation to Rights of Holders of Specified Senior Indebtedness
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40
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4.4
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Obligation to Pay Not Impaired
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41
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4.5
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No Payment if Specified Senior Indebtedness in Default
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41
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4.6
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Payment on Debentures Permitted
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42
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4.7
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Confirmation of Subordination
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42
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4.8
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Knowledge of Trustee
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43
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4.9
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Trustee May Hold Specified Senior Indebtedness
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43
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4.10
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Rights of Holders of Specified Senior Indebtedness Not Impaired
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43
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4.11
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Altering the Specified Senior Indebtedness
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43
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4.12
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Right of Holder to Receive Common Shares Not Impaired
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43
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4.13
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Contesting Security
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44
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ARTICLE 5 CONVERSION
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44
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5.1
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Conversion Right
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44
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5.2
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Completion of Conversion
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45
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5.3
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Relating to the Issue of Common Shares
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45
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5.4
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U.S. Legend on Common Shares
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46
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5.5
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No Remuneration for Soliciting Conversions
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47
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ARTICLE 6 MATURITY
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47
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6.1
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Payment of Principal and Interest at Maturity
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47
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ARTICLE 7 ADJUSTMENTS
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47
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7.1
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Adjustment of Conversion Rate
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47
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7.2
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No Adjustment
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54
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7.3
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Notice of Adjustment
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55
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7.4
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Notice of Certain Transactions
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55
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7.5
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Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.
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55
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7.6
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Voluntary Increase
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56
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7.7
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Protection of Trustee
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57
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ARTICLE 8 NEGATIVE COVENANTS
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57
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8.1
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Limitation on Indebtedness
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57
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8.2
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Negative Pledge
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58
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8.3
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Dividend Increase
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59
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8.4
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No Merger
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59
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8.5
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Hedging
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59
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ARTICLE 9 COVENANTS OF THE ISSUER
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59
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9.1
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Payment of Principal, Premium and Interest
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59
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9.2
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Corporate Existence; Books of Account
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59
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9.3
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Compliance Certificate
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59
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9.4
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Notice of Default
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60
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9.5
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Securities Laws
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60
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9.6
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Reporting
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60
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9.7
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Reserved
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62
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9.8
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Performance of Covenants by Trustee
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62
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9.9
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Payment of Trustee’s Remuneration
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62
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9.10
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[Intentionally Deleted]
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62
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9.11
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Further Instruments and Acts
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62
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9.12
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No Dividends on Common Shares if Event of Default
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62
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ARTICLE 10 EVENTS OF DEFAULT AND REMEDIES
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62
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10.1
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Events of Default and Enforcement
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62
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10.2
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Notice of Event of Default
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65
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10.3
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Waiver of Acceleration
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62
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10.4
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Waiver
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66
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10.5
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Other Remedies
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66
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10.6
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Application of Money Collected
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67
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10.7
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Control by Holders
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66
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10.8
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Limitation on Suits
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66
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10.9
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Collection Suit by Trustee
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68
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10.10
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Trustee May File Proofs of Claim
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68
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10.11
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Undertaking for Costs
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68
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10.12
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Remedies Cumulative
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68
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10.13
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Delay or Omission Not Waiver
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68
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10.14
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Judgment Against the Issuer
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69
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10.15
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Rights of Holders to Receive Payment and to Convert
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69
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ARTICLE 11 GUARANTEE
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69
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11.1
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Guarantors
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69
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11.2
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Waiver Regarding Material Information
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69
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11.3
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Opinion Regarding Guarantors
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69
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ARTICLE 12 SATISFACTION AND DISCHARGE
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70
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12.1
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Non-Presentation of Debentures
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70
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12.2
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Discharge
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70
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ARTICLE 12 SATISFACTION AND DISCHARGE
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71
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13.1
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Duties of Trustee
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71
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13.2
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Employ Agents
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71
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13.3
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Reliance on Evidence of Compliance
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71
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13.4
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Provision of Evidence of Compliance to Trustee
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72
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13.5
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Contents of Evidence of Compliance
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72
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13.6
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Advice of Experts
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73
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13.7
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Trustee May Deal in Debentures
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73
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13.8
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Conditions Precedent to Trustee’s Obligation to Act
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73
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13.9
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Trustee Not Required to Give Security
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74
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13.10
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Resignation or Removal of Trustee; Conflict of Interest
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74
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13.11
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Authority to Carry on Business; Resignation
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75
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13.12
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Protection of Trustee
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75
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13.13
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Additional Representations and Warranties of Trustee
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77
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13.14
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Third Party Interests
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77
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13.15
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Trustee Not Bound to Act
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77
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13.16
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Compliance with Privacy Laws
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78
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13.17
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Force Majeure
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78
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13.18
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SEC Reporting
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78
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ARTICLE 14 MEETINGS OF HOLDERS
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79
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14.1
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Purposes for Which Meetings May be Called
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79
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14.2
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Call, Notice and Place of Meetings
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79
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14.3
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Proxies
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79
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14.4
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Persons Entitled to Vote at Meetings
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80
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14.5
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Quorum; Action
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80
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14.6
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Determination of Voting Rights; Chairman; Conduct and Adjournment of
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Meetings
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81
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14.7
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Counting Votes and Recording Action of Meetings
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81
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14.8
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Instruments in Writing
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82
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14.9
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Holdings by the Issuer Disregarded
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82
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ARTICLE 15 AMALGAMATION, CONSOLIDATION, CONVEYANCE, TRANSFER
OR LEASE
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82
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15.1
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Amalgamation and Consolidations of Issuer and Conveyances Permitted
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Subject to Certain Conditions
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82
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15.2
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Rights and Duties of Successor Issuer or Successor Guarantor
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84
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ARTICLE 16 NOTICES
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84
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16.1
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Notice to Issuer
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84
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16.2
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Notice to Holders
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84
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16.3
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Notice to Trustee
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85
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ARTICLE 17 AMENDMENTS, SUPPLEMENTS AND WAIVERS
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85
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17.1
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Without Consent of Holders
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85
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17.2
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With Consent of Holders
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86
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17.3
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Execution of Supplemental Indentures
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86
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17.4
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Effect of Supplemental Indentures
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88
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17.5
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Reference in Debentures to Supplemental Indentures
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88
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17.6
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Prior Approval of Recognized Stock Exchange
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88
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ARTICLE 18 MISCELLANEOUS PROVISIONS
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88
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18.1
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Acceptance of Trusts
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88
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18.2
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Protection of Trustee
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88
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18.3
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Judgment Currency
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88
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18.4
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Counterparts and Formal Date
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89
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18.5
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Waiver of Trial by Jury
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89
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18.6
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Notice by Fax or E-mail
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89
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1.1
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Definitions
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(a)
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the acquisition by any Person or one or more members of a group of Persons, acting jointly or in concert, directly or indirectly, in a single transaction or a series of related transactions of voting control or direction over more than 35% of the then outstanding Common Shares;
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(b)
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the acquisition by any Person (other than the Issuer or any of the Guarantors) or one or more members of a group of Persons acting jointly or in concert (other than a group consisting solely of two or more of the Issuer and any of the Guarantors), directly or indirectly, in a single transaction or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole; or
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(c)
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the completion of a merger, amalgamation, arrangement or similar transaction which results in the holders of the Issuer’s Common Shares immediately prior to the completion of such transaction holding, in the aggregate, less than 50% of the then outstanding Common Shares of the resulting entity immediately after the completion of such transaction;
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(a)
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indebtedness of such Person for monies borrowed or raised, including any indebtedness represented by a note, bond, debenture or other similar instrument of such Person;
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(b)
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reimbursement obligations of such Person arising from bankers’ acceptance, letters of credit or letters of guarantee or similar instruments;
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(c)
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indebtedness of such Person for the deferred purchase price of property or services, other than for consumable non‑capital goods and services purchased in the ordinary course of business, including arising under any conditional sale or title retention agreement, but excluding for greater certainty ordinary course accounts payable;
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(d)
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obligations of such Person under or in respect of Capital Leases, synthetic leases, Purchase Money Security Interests or sale and leaseback transactions;
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(e)
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the aggregate amount at which shares in the capital of such Person that are redeemable at fixed dates or intervals or at the option of the holder thereof may be redeemed; and
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(f)
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guarantees or Liens granted by such Person in respect of Indebtedness of another Person;
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(i)
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Debentures theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
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(ii)
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Debentures for whose payment, purchase, or repurchase money in the necessary amount has been theretofore deposited with the Trustee under gratuitous deposit or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own paying agent) for the Holders of such Debentures; and
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(iii)
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Debentures that have been surrendered to the Trustee pursuant to section 2.17 or in exchange for or in lieu of which other Debentures have been certified and delivered pursuant to this Indenture, other than any such Debentures in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debentures are held by a bona fide purchaser in whose hands such Debentures are valid obligations of the Issuer;
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(c)
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Liens on real property incurred in connection with a sale and lease back of such real property securing Indebtedness permitted under section 8.1(c)(ii);
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(d)
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Liens over receivables and related assets incurred in connection with a securitization or factoring of receivables to the extent permitted under section 8.1(c)(iii);
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(e)
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Liens over the assets of a Subsidiary acquired by the Issuer or its subsidiaries securing indebtedness of such Subsidiary existing prior to its acquisition and not incurred in contemplation thereof to the extent permitted under section 8.1(c)(iv);
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(f)
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Liens over insurance policies securing indebtedness incurred to finance premiums due under such insurance policies to the extent permitted under section 8.1(c)(v);
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(g)
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Liens imposed or arising by operation of law, in each case, in respect of obligations not yet due or which have been postponed or are being contested in good faith and by appropriate proceedings to the extent that adequate reserves are maintained;
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(h)
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pledges or deposits made in the ordinary course of business in connection with bids or tenders or to comply with the requirements of any legislation or regulation applicable to the Person concerned or its business or assets;
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(i)
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easements, rights of way, encroachment agreements, servitudes, minor encroachments, minor irregularities in title or other similar encumbrances or privileges in respect of any real property which, either singly or in the aggregate, do not materially impair the value or the use thereof and which are not violated in any material respect by existing or proposed structures or land use, and any zoning restrictions and leases existing as at the date hereof;
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(j)
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undetermined or inchoate liens, rights of distress and charges incidental to current operations that have not at such time been filed or exercised and of which none of the Lenders has been given notice, or that relate to obligations not due or payable, or if due, the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person;
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(k)
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reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, that do not materially affect the use of the affected land for the purpose for which it is used by that Person;
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(l)
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the right reserved to or vested in any Governmental Authority by the terms of any lease, licence, franchise, grant or permit acquired by that Person or by any statutory provision to terminate any such lease, licence, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof; and
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(m)
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the Lien created by a judgement of a court of competent jurisdiction, as long as the judgement is being contested diligently and in good faith by appropriate proceedings by that Person and does not result in an Event of Default; and
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(n)
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any other Lien listed in Schedule 1.1
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(a)
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Indebtedness referred to in paragraphs (a) and (b) of the definition of Indebtedness;
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(b)
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renewals, extensions, restructurings, refinancings and refundings of any such Indebtedness; or
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1.2
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Interpretation
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(a)
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Words importing the singular number shall include the plural and vice versa and words importing any gender shall include the masculine, feminine and neuter genders.
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(b)
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The words “hereto”, “herein”, “hereof”, “hereby”, “hereunder”, and other words of similar import refer to this Indenture as a whole and not to any particular article, section, subsection, paragraph, clause or other part of this Indenture.
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(c)
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Except as otherwise provided herein, any reference in this Indenture to any act, statute, regulation, policy statement, instrument, agreement, or section thereof shall be deemed to be a reference to such act, statute, regulation, policy statement, instrument, agreement or section thereof as amended, re-enacted or replaced from time to time;
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(d)
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Any reference herein to any agreement shall include such agreement as amended, restated, supplemented, replaced or otherwise modified from time to time to the extent permitted hereunder;
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(e)
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Any reference herein to any Person shall include such Person’s permitted successors and permitted assigns.
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1.3
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Accounting Terms
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1.4
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Headings and Table of Contents
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1.5
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Section and Schedule References
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1.6
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Governing Law
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1.7
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Currency
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1.8
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Non-Business Days
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1.9
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Time
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1.10
|
Independence of Covenants
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1.11
|
Form of Documents Delivered to Trustee
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(a)
|
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.
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(b)
|
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.
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1.12
|
Acts of Holders
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(a)
|
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may, alternatively, be embodied in and evidenced by the record of Holders voting in favour thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article 14, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such requisite instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act of Holders”
or the
“Act”
of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and, subject to section 13.3, conclusive in favour of the Trustee and the Issuer, if made in the manner provided in this section 1.12. The record of any meeting of Holders shall be provided in the manner specified in section 14.7.
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(b)
|
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to such notary public or other officer the execution thereof. Where such execution is by a signer acting in a capacity, other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any manner that the Trustee deems sufficient.
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(c)
|
If the Issuer or the Trustee shall solicit from the Holders any Act, the Issuer or the Trustee, as the case may be, may, at its option, fix in advance a record date for the determination of Holders entitled to take such Act, but the Issuer or the Trustee, as the case may be, shall have no obligation to do so. Any such record date shall be fixed at the Issuer’s or the Trustee’s discretion, as the case may be, provided that such record date shall be fixed on a date not more than sixty (60) days prior to the Act. If such a record date is fixed, such Act may be sought or taken before or after the record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Debentures Outstanding have authorized or agreed or consented to such Act, and for that purpose the Debentures Outstanding shall be computed as of such record date.
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(d)
|
Any Act of the Holder of any Debenture shall bind every future holder of the same Debenture and the Holder of every Debenture issued upon the registration of transfer
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1.13
|
Interest Payments and Calculations
|
(a)
|
All interest payments to be made under this Indenture or any Debenture shall be paid without allowance or deduction for deemed re-investment or otherwise, both before and after Maturity and before and after default and/or judgment, if any, until payment of the amount on which such interest is accruing, and, to the extent permitted by Applicable Law, interest will accrue on overdue interest.
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(b)
|
For the purposes of the
Interest Act
(Canada), if in this Indenture or in any Debenture a rate of interest is or is to be calculated on the basis of a period which is less than a full calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied by the actual number of days in the calendar year for which such calculation is made and divided by the number of days in such period.
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(c)
|
The rate of interest stipulated in this Indenture or in any Debenture will be calculated using the nominal rate method of calculation, and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re-investment of interest.
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(d)
|
In calculating interest under this Indenture or under a Debenture for any period, unless otherwise specifically stated, the first day of such period shall be included and the last day of such period shall be excluded.
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1.14
|
English Language
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1.15
|
Successors and Assigns
|
1.16
|
Severability Clause
|
1.17
|
Benefits of Indenture
|
1.18
|
Unclaimed Debentures
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1.19
|
Schedules
|
1.20
|
Benefits of Indenture through Trustee
|
1.21
|
Form of Consideration
|
2.1
|
Limit of Issue and Designation of Debentures
|
2.2
|
Form and Terms of Debentures
|
(a)
|
The Debentures shall be dated as of the Issue Date. The Debentures shall bear interest from and including the Interest Commencement Date at the rate of 3.75% per annum (after as well as before Maturity, default and judgment, with interest on overdue interest at the said rate), payable in equal quarterly instalments in arrears on each Interest Payment Date, subject to section 2.3, and the Debentures shall mature on the Maturity Date. Subject to the other terms hereof, the principal of the Debentures will be payable on the Maturity Date in lawful money of the United States against surrender thereof by the Holder at the Corporate Trust Office or at such place or places as may be designated by the Issuer for that purpose.
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(b)
|
The Debentures shall be issued as fully registered Debentures in denominations of $1,000 and integral multiples of $1,000, or as a Global Debenture, and shall be convertible as provided for in Article 5.
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(c)
|
The Debentures and the certificate of the Trustee endorsed thereon shall be substantially in the form set forth in Schedule 2.2 hereto, provided that if a Debenture is issued as a Global Debenture in accordance with section 2.11, it shall have appended thereto a principal amount grid in the form of Schedule 2.2(c), which shall be appropriately adjusted at such times as Debentures are converted or repurchased in accordance with the terms hereof.
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2.3
|
Interest
|
(i)
|
the following Interest Payment Date;
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(ii)
|
if purchased in accordance with section 3.1, the date of payment;
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(iii)
|
if repurchased in accordance with section 3.2, the Change of Control Repurchase Date;
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(iv)
|
if converted in accordance with section 5.1, the Conversion Date; and
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(v)
|
the Maturity Date;
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2.4
|
Prescription
|
2.5
|
Issue of Debentures
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2.6
|
Execution
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(a)
|
The Debentures shall be executed on behalf of the Issuer by any Responsible Officer of the Issuer. The signature of any of such officer on the Debentures may be manual or facsimile. Debentures bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Debentures.
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(b)
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If Debentures are issued as Definitive Debentures, the Issuer shall provide to the Trustee a supply of certificates to evidence such Definitive Debentures in such form, in such amounts, bearing such distinguishing letters and numbers, and as at such times as are necessary to enable the Trustee to fulfil its responsibilities under this Indenture.
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2.7
|
Certification by Trustee
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(a)
|
At any time and from time to time after the execution and delivery of this Indenture, and in accordance with the terms hereof, the Issuer may deliver Debentures executed on behalf of the Issuer to the Trustee for certification, pursuant to an Issuer Order applicable thereto and evidence of compliance, if requested by the Trustee, in accordance with section 13.4 and Applicable Law. Upon receipt by the Trustee of an Issuer Order applicable to such Debentures and such evidence of compliance, the Trustee shall certify and deliver such Debentures in the manner specified in such Issuer Order, without receiving any consideration for such certification and delivery.
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(b)
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No Holder shall be entitled to any right or benefit under this Indenture with respect to a Debenture, and such Debenture shall not be valid or binding for any purpose, unless such Debenture has been certified by the Trustee, as evidenced by the manual signature of an authorized officer of the Trustee. Such certification upon any Debenture shall be conclusive evidence, and the only evidence, that such Debenture has been issued under this Indenture.
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(c)
|
Debentures bearing the manual signature of an individual who was, at the time that such signature was affixed, an authorized signing officer of the Trustee, shall be valid and binding on the Trustee notwithstanding that such individual ceased to be an authorized signing officer of the Trustee prior to the delivery of such Debentures.
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(d)
|
The certification by the Trustee on the Debentures shall not be construed as a representation or warranty by the Trustee as to the validity of this Indenture or of the Debentures (except in respect of the due certification thereof and any other warranties implied by law) or as to the performance by the Issuer of its obligations under this Indenture and the Trustee shall in no respect be liable or answerable for the use made of the Debentures or any of them or of the proceeds thereof.
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2.8
|
Registration of Exchanges
|
(a)
|
Subject to section 2.15, Debentures may be exchanged for one or more Debentures in an equal aggregate principal amount upon surrender of the Debentures to be exchanged at the specified office of the Trustee; provided, however, that each Debenture issued
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(b)
|
The Trustee may make a charge to reimburse itself for any stamp taxes or governmental charges required to be paid and a reasonable charge for its services and a reasonable sum per Debenture created and issued upon any exchange or transfer of Debentures effected by it. Payment of such charges will be made by the Person requesting the exchange or transfer as a condition precedent to such exchange or transfer.
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2.9
|
Persons Entitled to Payment
|
(a)
|
Prior to due presentment for registration of a transfer of any Debenture, the Issuer, the Trustee and any other Person, as the case may be, may treat the Person in whose name any Debenture is registered in the applicable register (including in the case of a Global Debenture, the Depository or the nominee of such Depository in whose name such Global Debenture is registered) as the absolute and sole owner of such Debenture for all purposes including receiving payment of the principal of, and any premium, if any, interest or other amount on such Debenture, receiving any notice to be given to the Holder of such Debenture, and taking any Act of Holders with respect to such Debenture, whether or not any payment with respect to such Debenture shall be overdue, and none of the Issuer, the Trustee or any other Person, as the case may be, shall be affected by notice to the contrary.
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(b)
|
Delivery of a Debenture to the Trustee by or on behalf of the Holder thereof shall, upon payment of such Debenture, be a valid discharge to the Issuer of all obligations evidenced by such Debenture. None of the Issuer, the Trustee or any other Person shall be bound to inquire into the title of any such Holder.
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(c)
|
In the case of the death of one or more joint registered Holders of a Debenture, the principal of, and premium, if any, interest and any other amounts on such Debenture may be paid to the survivor or survivors of such registered Holders whose receipt of such payment, accompanied by the delivery of such Debenture, shall constitute a valid discharge to the Issuer and the Trustee.
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2.10
|
Payment of Principal and Interest on Definitive Debentures
|
(a)
|
Subject to repurchase or conversion pursuant to the terms hereof, as payments in respect of interest on the Definitive Debentures become due, interest payable on the Definitive Debentures on an Interest Payment Date will be payable by the Issuer to the Holders thereof in whose names the Debentures are registered at the close of business on the Interest Record Date with respect to the applicable Interest Payment Date. The Issuer shall no later than 10:00 a.m. on the Business Day preceding such Interest Payment Date, provide to the Trustee such payment by electronic funds transfer to an account designated by the Trustee for all amounts due in respect of such interest, in each case to enable the Trustee to forward such payment to the Holder in whose name any Debenture is registered at the close of business on the Interest Record Date with respect to the applicable Interest Payment Date.
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(b)
|
If a Debenture or a portion thereof is called or presented for repurchase or conversion and the Payment Date or Conversion Date is subsequent to an Interest Record Date but prior to the related Interest Payment Date, interest accrued on such Debenture will be paid upon presentation and surrender of such Debenture or portion thereof up to but excluding the Payment Date or Conversion Date to the Holders thereof in whose names the Debentures are registered at the close of business on the Interest Record Date.
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(c)
|
Subject to the foregoing provisions of this section, each Debenture delivered in exchange for or in lieu of any other Debenture shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Debenture.
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2.11
|
Book-Based System
|
(a)
|
In the event that all of the Outstanding Definitive Debentures are registered in the name of “CDS & Co.” or “Cede & Co.”, the Trustee may issue, in replacement of the Definitive Debentures, one or more permanent global security certificates in the form of the certificate set out in Schedule 2.2 hereto together with the legend provided for in subsection (b) (in the case of Canadian Debentures) or (c) (in the case of U.S. Debentures) and section 2.20, as applicable (the
“Global Debenture(s)”
). The Global Debenture(s) shall be held by, or on behalf of, the applicable Depository as depository of the Participants in the Book-Based System for such Depository and shall be registered in the name of “CDS & Co.” (in the case of Canadian Debentures) or “Cede & Co.” (in the case of U.S. Debentures), or such other names as the applicable Depository may use from time to time as its nominee for the purposes of its Book-Based System. In the event that all of the Outstanding Debentures are registered in the name of “CDS & Co.” (in the case of Canadian Debentures) or “Cede & Co.” (in the case of U.S. Debentures), no Beneficial Holder will receive Definitive Debentures representing their beneficial ownership in Debentures unless the Issuer determines to terminate the Book-Entry Only Debentures. Where all of the Outstanding Definitive Debentures are represented by a Global Debenture, the Debentures represented thereby shall be deemed for the purposes hereof to have been issued as Book-Entry Only Debentures.
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(b)
|
The Global Debenture(s) representing Canadian Debentures shall bear a legend in substantially the following form subject to modification as required by CDS:
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(c)
|
The Global Debenture(s) representing U.S. Debentures shall bear a legend in substantially the following form subject to modification as required by DTC:
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2.12
|
Discontinuation of Book-Based System
|
(a)
|
either Depository has notified the Issuer and the Trustee that such Depository is unwilling or unable to continue as a Depository, or either Depository ceases to be a clearing agent registered or designated under the Applicable Securities Laws of the jurisdiction where such Depository has its principal offices; or
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(b)
|
the Trustee has determined that an Event of Default has occurred and is continuing with respect to the Debentures and Beneficial Holders representing, in the aggregate, more than 25% of the aggregate principal amount of the Debentures then Outstanding
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2.13
|
Payments of Principal and Interest for Book-Entry Only Debentures
|
2.14
|
Rank
|
2.15
|
Register and Transfer
|
(a)
|
The Issuer shall cause to be kept by and at the principal office of the Trustee in the City of Toronto, Province of Ontario, a register, and in such other place or places as the Issuer with the approval of the Trustee may designate, branch registers, in which shall be entered the names and latest known addresses of the Holders and all transfers of Debentures. Such registration shall be noted on the Debentures by the Trustee. No transfer of a Debenture shall be effective as against the Issuer unless made on one of the appropriate registers by the registered Holder or his executors or administrators or other legal representatives or his or their attorney duly appointed by an instrument
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(b)
|
with respect to Debentures issued as Book-Entry Only Debentures, the Issuer shall cause to be kept by and at the principal office of the Trustee in the City of Toronto, Province of Ontario, a central register in which shall be entered the name(s) and latest known address(es) of the Holder(s) of each Global Debenture (being one of the Depositories, or their respective nominees, for such Global Debenture) and the other particulars prescribed by law of the Debentures held by it (them) and all transfers of Debentures. Notwithstanding any other provision of this Indenture, a Global Debenture may not be transferred by the registered holder thereof except through records maintained by CDS or its nominee (in the case of Canadian Debentures) and DTC or its nominee (in the case of U.S. Debentures) in the following circumstances or as otherwise specified in a Board Resolution or Written Order;
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(c)
|
a Global Debenture may be transferred by a Depository to a nominee of such Depository or by a nominee of a Depository to such Depository or to another nominee of such Depository or by a Depository or its nominee to a successor Depository or its nominee;
|
(d)
|
a Global Debenture may be transferred at any time after the Depository for such Global Debenture (i) has notified the Issuer that it is unwilling or unable to continue as Depository for such Global Debenture or (ii) ceases to be eligible to be a Depository provided that at the time of such transfer the Issuer has not appointed a successor Depository for such Global Debenture;
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(e)
|
a Global Debenture may be transferred at any time after the Issuer has determined, in its sole discretion, to terminate the Book-Based System in respect of such Global Debenture and has communicated such determination to the Trustee in writing; and
|
(f)
|
a Global Debenture may be transferred at any time after the Trustee has determined that an Event of Default has occurred and is continuing with respect to the Debentures issued as a Global Debenture, provided that at the time of such transfer the Trustee has not waived the Event of Default pursuant to Article 10.
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(g)
|
Notwithstanding any other provisions of this Indenture or the Debentures, transfers and exchanges of Debentures and beneficial interests in Global Debentures shall be made in accordance with this subsection 2.15(g).
|
(i)
|
Transfer of Beneficial Interests in the Same Global Debenture
. Except as may be required by the Trustee or the applicable Depository, no written orders or instructions shall be required to be delivered to the Trustee to effect a transfer of a beneficial interest in a Global Debenture to Persons who take delivery thereof in the form of a beneficial interest in the same Global Debenture.
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(ii)
|
Transfer and Exchange of Beneficial Interests in a Restricted Global Debenture for Beneficial Interests in an Unrestricted Global Debenture
. A beneficial interest in a Restricted Global Debenture may be exchanged by any holder
|
(1)
|
if the holder of such beneficial interest in a Restricted Global Debenture proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Debenture, a certificate from such holder in the form of Schedule 2.15(b) hereto, including the certifications in item (1)(a) thereof; or
|
(2)
|
if the holder of such beneficial interest in a Restricted Global Debenture proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Debenture, a certificate from such holder in the form of Schedule 2.15(a) hereto, including the certifications in items (2) or (3) thereof;
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(iii)
|
Transfer and Exchange of Beneficial Interests in an Unrestricted Global Debenture for Beneficial Interests in a Restricted Global Debenture
. A beneficial interest in any Unrestricted Global Debenture may be exchanged by any holder thereof for a beneficial interest in a Restricted Global Debenture or transferred to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Debenture if the Trustee receives the following:
|
(1)
|
if the holder of such beneficial interest in an Unrestricted Global Debenture proposes to exchange such beneficial interest for a beneficial interest in a Restricted Global Debenture, a certificate from such holder in the form of Schedule 2.15(b) hereto, including the certifications in item (2) thereof; or
|
(2)
|
if the holder of such beneficial interest in an Unrestricted Global Debenture proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in a Restricted Global Debenture, a certificate from such holder in the form of Schedule 2.15(a) hereto, including the certifications in item (1) thereof.
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(iv)
|
Transfer of Restricted Definitive Debentures for Restricted Definitive Debentures
. A Restricted Definitive Debenture may be transferred to a Person who takes delivery thereof in the form of a Restricted Definitive Debenture if the Trustee receives a certificate to the effect set forth in Schedule 2.15(a) hereto, including the certifications in item (1) thereof.
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(v)
|
Transfer and Exchange of Restricted Definitive Debentures for Unrestricted Definitive Debentures
. A Restricted Definitive Debenture may be exchanged by the holder thereof for an Unrestricted Definitive Debenture or transferred to a Person who takes delivery thereof in the form of an Unrestricted Definitive Debenture if the Trustee receives the following:
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(1)
|
if the holder of such Restricted Definitive Debenture proposes to exchange such Debenture for an Unrestricted Definitive Debenture, a certificate from such holder in the form of Schedule 2.15(b) hereto, including the certifications in item (1)(b) thereof; or
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(2)
|
if the holder of such Restricted Definitive Debenture proposes to transfer such Debenture to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Debenture, a certificate from such holder in the form of Schedule 2.15(a) hereto, including the certifications in item (2) or (3) thereof;
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(vi)
|
Transfer of Unrestricted Definitive Notes for Unrestricted Definitive Notes
. Except as may be required by the Trustee or the applicable Depository, no written orders or instructions shall be required to be delivered to the Trustee to effect a transfer of an Unrestricted Definitive Note to Persons who take delivery thereof in the form of an Unrestricted Definitive Note.
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2.16
|
Additional Amounts
|
(a)
|
Any payments made by or on behalf of the Issuer or Guarantor under or with respect to the Debentures (including, without limitation, any Common Share Payment) (in this section 2.16, such payment, a
“Debenture Payment”
) will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including, without limitation, penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the Government of Canada or of any province or territory of Canada or by any authority or agency thereof or therein having power to tax, including, without limitation any such charges or taxes imposed under Part XIII of the
Income Tax Act
(Canada) (or any successor legislation of similar effect) (
“Taxes”
), unless the Issuer or Guarantor is required to withhold or deduct any amount, for or on account of, Taxes by Applicable Law. If the Issuer or Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any Debenture Payment made under or with respect to the Debentures, the Trustee will make such withholding or deduction and will remit the full amount withheld or deducted to the relevant Governmental Authority as and when required by Applicable Law and the Issuer or Guarantor, as applicable, will pay to the Trustee for payment to the relevant Holder such additional amounts (the
“Additional Amounts”
) as may be necessary so that the net amount
|
(b)
|
Within ninety (90) days after the date the payment of any Taxes is due pursuant to Applicable Law, the Trustee will furnish to the Issuer copies of tax receipts, if any, evidencing such payment by the Trustee.
|
(c)
|
As soon as practicable prior to each date on which any Debenture Payment is due and payable, if the Issuer or Guarantor to its knowledge will be obligated to pay Additional Amounts with respect to such Debenture Payment, the Issuer or Guarantor, as applicable, will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the date payment is due.
|
(d)
|
Whenever in the Indenture or in any Debenture there is mentioned, in any context, the payment of principal (and premium, if any), a purchase price, interest or any other Debenture Payment, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
|
(e)
|
The Issuer and the Guarantor will indemnify and hold harmless each Holder and Beneficial Holder and upon written request reimburse each of the Holders and Beneficial Holders for the amount of (i) any Indemnified Taxes so levied or imposed and paid by the Holder or Beneficial Holder, as applicable, as a result of Debenture Payments, and (ii) any Indemnified Taxes levied or imposed and paid by the Holder or Beneficial Holder with respect to reimbursement under (i) above.
|
(f)
|
If the Issuer or Guarantor pays any indemnity or Additional Amounts under this section 2.16 to a Holder and the Holder or Beneficial Holder at any time thereafter receives a refund in respect of Taxes or a credit with respect to payment of Taxes (in both cases, in respect of a Debenture Payment in respect of which such indemnity or Additional Amount was paid), then such Holder or Beneficial Holder shall promptly pay to the Issuer or Guarantor, as applicable, the amount of such refund or credit net of all out-of pocket expenses reasonably incurred by the Holder or Beneficial Holder to obtain such refund or credit.
|
(g)
|
Where the Issuer is required by Applicable Law to withhold or deduct Taxes from any payment made on a conversion or such other circumstance where the Issuer is issuing Common Shares to a Holder and there is insufficient cash being paid to satisfy the withholding required, the Trustee, on the written request of the Issuer but for the account of the Holder, shall facilitate the sale to the extent it is permitted by Applicable Securities Laws, through the investment banks, brokers or dealers selected by the Issuer, out of the Common Shares issued by the Issuer to the applicable Holder, such number of Common Shares that is sufficient to yield net proceeds (after payment of all costs) to cover the amount of Taxes required to be withheld, and shall remit same on behalf of the Issuer to the relevant Governmental Authority as and when required by Applicable Law and shall transfer the balance of the cash proceeds, if any, to the applicable Holder.
|
2.17
|
Cancellation of Debentures
|
(a)
|
All Debentures surrendered for payment of the final amount required to be paid thereon, or that have been surrendered to the Trustee for registration of exchange or transfer, shall be promptly cancelled by the Trustee on receipt. The Trustee shall give
|
(b)
|
The Issuer may, in its discretion at any time, deliver to the Trustee for cancellation any Debentures which the Issuer has purchased as provided for in this Indenture, and all such Debentures so delivered shall be cancelled by the Trustee.
|
(c)
|
All Debentures which have been cancelled by the Trustee shall be destroyed by the Trustee in accordance with its standard practices, and the Trustee shall furnish to the Issuer a destruction certificate setting forth the numbers and denominations of the Debentures so destroyed.
|
2.18
|
Mutilated, Lost, Stolen or Destroyed Debentures
|
(a)
|
If any Debenture has been mutilated or defaced or has or has been alleged to have been lost, stolen or destroyed, then, on application by the applicable Holder to the Trustee, the Issuer may, in its discretion, execute, and upon such execution the Trustee shall certify and deliver, a new Debenture of the same date and amount as the defaced, mutilated, lost, stolen or destroyed Debenture in exchange for and in place of the defaced or mutilated Debenture, and in lieu of and in substitution for the lost, stolen or destroyed Debenture. Notwithstanding the foregoing, no Debenture shall be delivered as a replacement for any Debenture which has been mutilated or defaced otherwise than upon surrender of the mutilated or defaced Debenture, and no Debenture shall be delivered as a replacement for any Debenture which has been lost, stolen or destroyed unless the applicant for the replacement Debenture has furnished to the Issuer and the Trustee evidence, satisfactory in form and substance to the Issuer and the Trustee, of its ownership of, and of such loss, theft or destruction of, such Debenture and has provided a surety bond and indemnity to the Issuer and the Trustee in amount, form and substance satisfactory to each of them. Any instructions by the Issuer to the Trustee under this section shall include such indemnity for the protection of the Trustee as the Trustee may reasonably require.
|
(b)
|
If any mutilated, defaced, lost, stolen or destroyed Debenture has become or is about to become due and payable, the Issuer, in its discretion, may, instead of executing a replacement Debenture, pay to the Holder thereof the full amount outstanding on such mutilated, defaced, lost, stolen or destroyed Debenture.
|
(c)
|
Upon the issuance of a replacement Debenture, the Issuer may require the applicant for such replacement Debenture to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to such issuance and any other expenses (including the fees and expenses of the Trustee and the Issuer) connected with such issuance.
|
(d)
|
Each replacement Debenture shall bear a unique serial number and be in a form otherwise identical to the Debenture it replaces and shall be entitled to the benefits of this Indenture to the same extent and in the same manner as the Debenture it replaces.
|
(e)
|
Unless the Issuer instructs otherwise, the Trustee shall, in accordance with its practice, destroy each mutilated or defaced Debenture surrendered to and cancelled by it and
|
2.19
|
Access to Lists of Holders
|
(a)
|
The register of Holders maintained by the Trustee will, at all reasonable times during the regular business hours of the Trustee, be open for inspection by the Issuer.
|
(b)
|
If any Beneficial Holder or group of Beneficial Holders, or such one or more Holders as may be permitted by Applicable Law (in each case, the
“Applicants”
) apply to the Trustee (with a copy to the Issuer), then the Trustee, after having been funded and indemnified to its reasonable satisfaction by such Applicants for its related costs and expenses, shall afford or shall cause the Issuer to afford the Applicants access during normal business hours to the most recent list of Holders within ten (10) Business Days after the receipt of such application by the Trustee. Such list shall be as of a date no more than ten (10) days (or such other date as may be mandated by Applicable Law) prior to the date of receipt of the Applicants’ request.
|
2.20
|
Canadian Private Placement Legend
|
2.21
|
U.S. Legend on Debentures
|
2.22
|
Payment in Shares
|
3.1
|
Purchase of Debentures
|
3.2
|
Repurchase of Debentures at Option of the Holder upon a Change of Control
|
(a)
|
If a Change of Control occurs prior to the Maturity Date, the Issuer shall make an offer to the Holders to repurchase for cash on the Change of Control Repurchase Date all or any portion of the Debentures of each such Holder, at the Change of Control Repurchase Price (the “
Change of Control Repayment Offer
”) (provided that in the case of a Change of Control caused by Fairfax or any Affiliate thereof, whether by itself or together with any other Person with whom Fairfax or any such Affiliate is acting jointly or in concert, the Issuer shall not be required to make a Change of Control Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate thereof or any other such Person). As promptly as practicable following the Change of Control, but in any event within ten (10) days after the occurrence of such Change of Control, the Issuer shall provide notice of the Change of Control to the Trustee and the Holders in the manner provided in sections 16.2 and 16.3 (the “
Change of Control Issuer Notice
”). The Change of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Repayment Offer and the following:
|
(i)
|
the events causing such Change of Control;
|
(ii)
|
the date of such Change of Control;
|
(iii)
|
the last date by which the Change of Control Repurchase Notice must be delivered to elect the repurchase option pursuant to this section 3.2;
|
(iv)
|
the Change of Control Repurchase Date;
|
(v)
|
the Change of Control Repurchase Price;
|
(vi)
|
the Holder’s right to require the Issuer to purchase all or a portion of the Debentures held by such Holder by accepting the Change of Control Repayment Offer;
|
(vii)
|
the name and address of the Trustee;
|
(viii)
|
the then effective Conversion Price and Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of Control and details of all such calculations;
|
(ix)
|
the procedures that the Holder must follow to exercise conversion rights under Article 5 and that Debentures as to which a Change of Control Repurchase Notice has been given may be converted into Common Shares pursuant to Article 5 of this Indenture only to the extent that the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
|
(x)
|
the procedures that the Holder must follow to exercise rights under this section 3.2;
|
(xi)
|
the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice;
|
(xii)
|
that, unless the Issuer fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; and
|
(xiii)
|
the CUSIP number of the Debentures.
|
(b)
|
A Holder may accept a Change of Control Repayment Offer by delivering a written notice (which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Book‑Entry Only Debenture, may be delivered electronically or by other means in accordance with the applicable Depository’s applicable procedures) of such acceptance (a
“Change of Control Repurchase Notice”
) to the Issuer or the Trustee at any time prior to the close of business on the second Business Day next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws.
|
(i)
|
The Change of Control Repurchase Notice shall state: (A) the certificate number (if such Debenture is held other than in global form) of the Debenture which the Holder will deliver to be purchased (or, if the Debenture is a
|
(ii)
|
The delivery of a Debenture (if such Debenture is held other than in global form) for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor.
|
(iii)
|
The Issuer shall only be obliged to purchase, pursuant to this section 3.2, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture).
|
(c)
|
Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this section 3.2 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the third Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Issuer Notice or, if not set out therein, then in accordance with section 3.3.
|
(d)
|
The Trustee shall promptly notify the Issuer of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.
|
(e)
|
Anything herein to the contrary notwithstanding, in the case of Book‑Entry Only Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Book‑Based System as in effect from time to time.
|
3.3
|
Effect of Change of Control Repurchase Notice
|
(a)
|
Upon receipt by the Trustee of a Change of Control Repurchase Notice from a Holder containing the information specified in section 3.2(b)(i), the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in section 3.3(b)), thereafter be entitled to receive the Change of Control Repurchase Price with respect to such Debenture. The Change of Control Repurchase Price shall be paid to such Holder promptly following the later of (1) the Change of Control Repurchase Date and (2) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by section 3.2. Debentures in respect of which a Change of Control Repurchase Notice has been given by the Holder thereof may not be converted
|
(b)
|
A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, courier, hand delivery, facsimile transmission or in any other written form and, in the case of Book-Entry Only Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Book‑Based System) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the third Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Definitive Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in part (or if the Debentures are not Definitive Debentures, such written notice must comply with the applicable procedures of the Book-Based System) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof.
|
3.4
|
Deposit of Change of Control Repurchase Price
|
(a)
|
On or before 12:00 p.m. (noon) on the Business Day prior to the applicable Change of Control Repurchase Date, the Issuer shall deposit with the Trustee an amount of money (in immediately available funds), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, together with accrued and unpaid interest to but excluding the Change of Control Repurchase Date on such Debentures or portions thereof.
|
(b)
|
If the Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price and accrued interest of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and accrued and unpaid interest as aforesaid). The Issuer shall publicly announce the principal amount of Debentures repurchased on or as soon as practicable after the Change of Control Repurchase Date.
|
(c)
|
The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture.
|
(d)
|
If a Change of Control Repurchase Date falls after an Interest Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on
|
3.5
|
Repayment to the Issuer
|
3.6
|
Debentures Purchased in Part
|
3.7
|
[Intentionally Deleted]
|
3.8
|
[Intentionally Deleted]
|
3.9
|
[Intentionally Deleted]
|
3.10
|
[Intentionally Deleted]
|
3.11
|
[Intentionally Deleted]
|
3.12
|
Compliance with Applicable Securities Laws upon Purchase of Debentures
|
3.13
|
Cancellation of Purchased Debentures
|
4.1
|
Applicability of Article
|
4.2
|
Order of Payment
|
(a)
|
all Specified Senior Indebtedness shall first be paid in full, or provision made for such payment, before any payment is made on account of Debenture Liabilities (other than Permitted Junior Payments);
|
(b)
|
any payment or distribution of assets of the Issuer or any Guarantor, whether in cash, property or securities (other than Permitted Junior Payments), to which the holders of the Debentures or the Trustee on behalf of such holders would be entitled except for the provisions of this Article 4, shall be paid or delivered by the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such payment or distribution, directly to the holders of Specified Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Specified Senior Indebtedness may have been issued, to the extent necessary to pay all Specified Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Specified Senior Indebtedness; and
|
(c)
|
the Senior Creditors or a receiver or a receiver-manager of the Issuer or any Guarantor or of all or part of their respective assets or any other enforcement agent may sell, mortgage, or otherwise dispose of the Issuer’s or any Guarantor’s assets in whole or in part, free and clear of all Debenture Liabilities and without the approval of the Holders or the Trustee or any requirement to account to the Trustee or the Holders until after the Specified Senior Indebtedness has been paid in full.
|
(i)
|
whether any Senior Security has been granted or is in effect;
|
(ii)
|
the time, sequence or order of creating, granting, executing, delivering of, or registering, perfecting or failing to register or perfect any security notice, caveat, financing statement or other notice in respect of any Senior Security;
|
(iii)
|
the time or order of the attachment, perfection or crystallization of any security constituted by any Senior Security;
|
(iv)
|
the taking of any collection, enforcement or realization proceedings pursuant to the Specified Senior Indebtedness, including pursuant to any Senior Security;
|
(v)
|
the date of obtaining of any judgment or order of any bankruptcy court or any court administering bankruptcy, insolvency or similar proceedings as to the entitlement of the Senior Creditors, or any of them, or the Holders or any of them, to any money or property of the Issuer or any Guarantor;
|
(vi)
|
the failure to exercise any power or remedy reserved to the Senior Creditors, including under the Senior Security, or to insist upon a strict compliance with any terms thereof;
|
(vii)
|
whether any Senior Security is now perfected, hereafter ceases to be perfected, is avoidable by any trustee in bankruptcy or like official or is otherwise set aside, invalidated or lapses;
|
(viii)
|
the date of giving or failing to give notice to or making demand upon the Issuer or any Guarantor; or
|
(ix)
|
any other matter whatsoever.
|
4.3
|
Subrogation to Rights of Holders of Specified Senior Indebtedness
|
4.4
|
Obligation to Pay Not Impaired
|
4.5
|
No Payment if Specified Senior Indebtedness in Default
|
4.6
|
Payment on Debentures Permitted
|
4.7
|
Confirmation of Subordination
|
4.8
|
Knowledge of Trustee
|
4.9
|
Trustee May Hold Specified Senior Indebtedness
|
4.10
|
Rights of Holders of Specified Senior Indebtedness Not Impaired
|
4.11
|
Altering the Specified Senior Indebtedness
|
4.12
|
Right of Holder to Receive Common Shares Not Impaired
|
4.13
|
Contesting Security
|
5.1
|
Conversion Right
|
(a)
|
Except as set forth in section 3.3(a), each Holder shall have the right at any time during the Permitted Conversion Period at its option to convert each $1,000 principal amount of its Debentures into Common Shares at the Conversion Rate in effect at such time, all on the terms and subject to the conditions provided in this Article 5, provided that the only shares issuable on conversion of the Debentures shall be Prescribed Securities.
|
(b)
|
[Intentionally deleted.]
|
(c)
|
[Intentionally deleted.]
|
(d)
|
In order to exercise its option to convert provided pursuant to subsection (a), a Holder will, subject to the proviso herein, be required to deliver to the Trustee at the Corporate Trust Office a conversion notice in the form set forth in Schedule 5.1(d) (the “Conversion Notice”) (with a copy to the Issuer), duly completed and executed by the Holder or its executors, administrators or other legal representatives or its or their attorney duly appointed by instrument in form and execution satisfactory to the Trustee, together with the related Debentures. The Conversion Notice shall specify the date of conversion (the “Conversion Date”) of the Debentures, which Conversion Date shall not be earlier than the second Business Day following the date of receipt by the Trustee and the Issuer of the Conversion Notice and shall be a date that falls within the Permitted Conversion Period.
|
(e)
|
Upon receipt of a Conversion Notice from the Holder, the Issuer shall ensure that the following conditions are met:
|
(i)
|
unless, pursuant to the terms of this Indenture, Common Shares are no longer issuable upon conversion, the Common Shares to be issued on conversion shall be issued from treasury of the Issuer, shall be fully paid and non-assessable Common Shares, and shall be free of any Lien or adverse claim;
|
(ii)
|
unless a Change of Control has occurred, the Common Shares to be issued shall be listed for trading on a Recognized Stock Exchange;
|
(iii)
|
unless a Change of Control has occurred, the Issuer shall be a reporting issuer or equivalent in good standing or equivalent under Applicable Securities Laws in the Provinces of Canada in which the Issuer is then a reporting issuer;
|
(iv)
|
no Default or Event of Default shall have occurred and be continuing; and
|
(v)
|
the receipt by the Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures, plus the accrued and unpaid interest thereon, and the calculation of the Conversion Rate.
|
5.2
|
Completion of Conversion
|
(a)
|
Subject to section 5.1, as promptly as practicable but no later than the Conversion Date, the Issuer shall make a Common Share Payment together with a certified cheque, bank draft or wire transfer of electronic funds in the amount of the accrued and unpaid interest thereon, and if the Holder has elected to convert a principal amount of Debentures, (the
“exercised amount”
), which is less than the principal amount of all Debentures of which such Person is the Holder immediately prior to such exercise (the
“registered amount”
), Debenture(s) registered in the name of such Holder in an aggregate principal amount equal to the amount by which the registered amount exceeds the exercised amount.
|
(b)
|
All Debentures converted in whole or in part pursuant to this Article 5 shall be forthwith delivered to and cancelled by the Trustee and the Trustee shall amend the register maintained by it accordingly.
|
(c)
|
Except as provided herein, Debentures which have been converted may not be reissued or resold.
|
5.3
|
Relating to the Issue of Common Shares
|
(a)
|
A Holder shall be treated as the shareholder of record of the Common Shares issued on due conversion of his Debentures and the issuance of Common Shares shall be deemed to have occurred, for all purposes, effective immediately after the close of business on the Conversion Date; such Holder shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including stock dividends and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Trustee receives the same, it shall hold the same under gratuitous deposit for the benefit of such Holder.
|
(b)
|
The Issuer shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited) solely for the purpose of issue and delivery upon the conversion of Debentures, and shall issue to Holders who may exercise their conversion rights hereunder such number of Common Shares as shall be issuable in such events.
|
(c)
|
The Issuer shall comply with all Applicable Securities Laws regulating the issue and delivery of Common Shares upon conversion of Debentures, shall use commercially reasonable efforts to obtain any regulatory approval (excluding, for the avoidance of doubt, the filing of any prospectus or similar document in any jurisdiction) in respect thereof as may be required pursuant to Applicable Securities Laws and shall use commercially reasonable efforts to cause to be listed and posted for trading such Common Shares on each Recognized Stock Exchange prior to the issuance thereof.
|
(d)
|
Notwithstanding Section 2.15, all or a portion of a Global Debenture may be transferred by the Depository for Canadian Debentures to a Beneficial Holder that is a non-resident of Canada as a fully registered Debenture if required by applicable law or the policies of such Depository in connection with a conversion of such portion into Common Shares pursuant to the provisions hereof.
|
5.4
|
U.S. Legend on Common Shares
|
5.5
|
No Remuneration for Soliciting Conversions
|
6.1
|
Payment of Principal and Interest at Maturity
|
7.1
|
Adjustment of Conversion Rate
|
(a)
|
If the Issuer pays a dividend or makes a distribution on all or substantially all of its outstanding Common Shares in Common Shares, the Conversion Rate in effect immediately prior to the record date for the determination of shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by the Issuer by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of the number of Common Shares outstanding at the close of business on such record date plus the total number of Common Shares constituting such dividend or other distribution and of which the denominator shall be the number of Common Shares outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall
|
(b)
|
If the Issuer subdivides its outstanding Common Shares into a greater number of shares, or combines its outstanding Common Shares into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Shares, proportionately increased and, in the case of a combination of Common Shares, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Shares occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective.
|
(c)
|
If the Issuer fixes a record date for the issue of rights, options or warrants to all or substantially all holders of its outstanding Common Shares entitling them (for a period expiring within forty-five (45) days after the record date for such issuance) to subscribe for or purchase Common Shares (or Convertible Securities) (as defined below) at a price per share (or, as the case may be, having a conversion price, exchange price or exercise price per share) less than 95% of the Current Market Price
per Common Share on the record date for the determination of shareholders entitled to receive such rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of Common Shares outstanding at the close of business on such record date plus the number of additional Common Shares that such rights, options or warrants entitle holders thereof to subscribe for or purchase (or into which such Convertible Securities are convertible, exercisable or exchangeable) and of which the denominator shall be the number of Common Shares outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of Common Shares so offered for subscription or purchase (or the aggregate conversion price of the Convertible Securities so offered for subscription or purchase, which shall be determined by multiplying the number of Common Shares issuable upon conversion of such Convertible Securities by the conversion price per Common Share pursuant to the terms of such Convertible Securities) would purchase at the Current Market Price per Common Share on such record date. Such adjustment shall be made successively whenever any such rights, options or warrants (or Convertible Securities) are issued, and shall become effective immediately after such record date.
|
(d)
|
If the Issuer pays a dividend or other distribution to all or substantially all holders of its Common Shares consisting of evidences of indebtedness or other assets of the Issuer, including securities (excluding (i) any issuance of rights, options or warrants for which an adjustment was made pursuant to subsection 7.1(c), (ii) dividends or distributions in connection with a reclassification, consolidation, merger, combination, sale or conveyance resulting in a change in the conversion consideration pursuant to subsection 7.5, or pursuant to any Rights Plan, (iii) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to subsection 7.1(f) or (iv) any dividend or distribution paid in Common Shares for which an adjustment was made pursuant to subsection 7.1(a)) (the
“Distributed Property”
), then in each such case (unless the Issuer distributes such Distributed Property for distribution to the Holders of Debentures on such dividend or distribution date as if each Holder had converted such Debenture into Common Shares immediately prior to the record date with respect to such distribution) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying (X) the Conversion Rate in effect immediately prior to the record date fixed for the determination of shareholders entitled to receive such dividend or distribution by (Y) a fraction of which the numerator shall be the Current Market Price per Common Share on such record date and of which the denominator shall be Current Market Price per Common Share on such record date less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Property so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
|
(e)
|
With respect to any rights or warrants (the
“Rights”
) that may be issued or distributed pursuant to any shareholder rights plan that the Issuer implements after the date of this Indenture (a
“Rights Plan”
), to the extent that such Rights Plan is in effect upon a conversion of Debentures, the Holders of Debentures will receive as a result of becoming a holder of Common Shares and not as additional consideration for the conversion of the Debentures, with respect to the Common Shares issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Shares at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that, if, at the time of conversion, however, the Rights have separated from the Common Shares in accordance with the provisions of the Rights Plan so that Holders would not be entitled to receive any Rights in respect of the Common Shares issuable upon conversion of the Debentures as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Issuer distributed to all holders of Common Shares Distributed Property constituting such Rights, as provided in the first paragraph of subsection 7.1(d), subject to appropriate readjustment in the event of the expiration, termination, repurchase or redemption of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately
|
(f)
|
If the Issuer, by dividend or otherwise, at any time distributes (a
“Triggering Distribution”
) to all holders of its Common Shares a payment consisting exclusively of cash (excluding (i) any Distributions Paid in the Ordinary Course, and (ii) any dividend or distribution in connection with the liquidation, dissolution or winding-up of the Issuer, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “
Determination Date
”) by a fraction of which the numerator shall be such Current Market Price per Common Share on the Determination Date and the denominator of which shall be the Current Market Price per Common Share on the Determination Date less the amount of such cash dividend or distribution applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of the cash dividend or distribution applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on the Determination Date, then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Debenture shall have the right to receive upon conversion the amount of cash so distributed that such Holder would have received had such Holder converted each Debenture on such Determination Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
|
(g)
|
If any issuer bid made by the Issuer or any of its Subsidiaries for all or any portion of Common Shares expires, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Closing Price per Common Share on the Trading Day next succeeding the last date (the “
Expiration Date
”) deposits could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “
Expiration Time
”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “
Purchased Shares
”) and (B) the product of the number of
|
(h)
|
If the Issuer shall issue Common Shares (or rights or warrants or other securities exercisable or convertible into or exchangeable for Common Shares (collectively, “
Convertible Securities
”)) pursuant to a non-public offering (other than in Permitted Transactions (as defined below) or a transaction to which section 7.1(a), 7.1(c) or 7.1(d) is applicable) without consideration or at a consideration per Common Share (or having a conversion price, exercise price or exchange price per Common Share) that is less than 95% of the Current Market Price on the last Trading Day preceding the date of the agreement on pricing such Common Shares (or such Convertible Securities) (such date of the agreement on pricing, the “
Pricing Date
”) (any such events being a “
Non-Public Offering
”) then, in such event and subject to the approval of the TSX, the Conversion Rate in effect immediately prior to the Pricing Date shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate by a fraction of which the numerator shall be the sum of (A) the number of Common Shares outstanding immediately prior to the Pricing Date and (B) the number of additional Common Shares issued (or into which Convertible Securities may be exercised or converted) and of which the denominator shall be the sum of (A) the number of Common Shares outstanding immediately prior to the Pricing Date and (B) the number of Common Shares which the aggregate consideration receivable by the Issuer for the total number of Common Shares so issued (or into which Convertible Securities may be exercised or converted) would purchase at the Current Market Price on the last Trading Day preceding the Pricing Date, such increase to become effective immediately prior to the opening of business on the seventh Trading Day following the closing of the Non-Public Offering.
|
(i)
|
In case the Issuer takes any action affecting the Common Shares other than action described in this section 7.1, which in the opinion of the Board of Directors would materially affect the conversion rights of Holders, the Conversion Price and the Common Shares issuable upon conversion of the Debentures must be adjusted in such manner and at such time, by action of the Board of Directors, subject to the prior written consent of the TSX and any other Recognized Stock Exchange on which the Debentures or the Common Shares are then listed, as the Board of Directors in its sole discretion may determine to be equitable in the circumstances. Failure of the Board of Directors to make such an adjustment will be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
|
(j)
|
For purposes of this section, the term “
issuer bid
” shall mean and include both issuer bids and exchange offers, all references to “
purchases
” of shares in issuer bids (and all similar references) shall mean and include both the purchase of shares in issuer bids and the acquisition of shares pursuant to exchange offers, and all references to “
tendered shares
” (and all similar references) shall mean and include shares tendered in both issuer bids and exchange offers.
|
(k)
|
For purposes of any computation under subsection 7.1(g), if the “ex” date for any event (other than the issuer bid that is the subject of the adjustment pursuant to subsection 7.1(g)) that requires an adjustment to the Conversion Rate pursuant to subsection 7.1(a), (b), (c), (d), (e) or (f) occurs on the date of the Expiration Time for the tender or exchange offer requiring such computation or on the Trading Day next following the Expiration Time, the Closing Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by dividing such Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this subsection (k) the term “ex” date, when used:
|
(1)
|
with respect to any issuance or distribution, means the first date on which the Common Shares trade “regular way” on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution;
|
(2)
|
with respect to any subdivision or combination of Common Shares, means the first date on which the Common Shares trade “regular way” on such exchange or in such market after the time at which such subdivision or combination becomes effective, and
|
(3)
|
with respect to any tender or exchange offer, means the first date on which the Common Shares trade regularly on such exchange or in such market after the Expiration Time of such offer.
|
7.2
|
No Adjustment
|
(a)
|
Subject to approval of the TSX, no adjustment in the Conversion Rate shall be required if Holders may participate in the transactions set forth in section 7.1 above (to the same extent as if the Debentures had been converted into Common Shares immediately prior to such transactions) without converting the Debentures held by such Holders. Any such participation in a transaction will be subject to the prior approval of the TSX.
|
(b)
|
No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate as last adjusted; provided, however, that any adjustments which would be required to be made but for this section 7.2(b) shall be carried forward and taken into account in any subsequent adjustment. The Issuer shall adjust for any carry forward amount upon conversion regardless of the 1% threshold. All calculations under this Article 7 shall be made to the nearest cent or to the nearest one-ten thousandth of a share, as the case may be, with one half cent and 0.00005 of a share, respectively, being rounded upward.
|
(c)
|
No adjustment in the Conversion Rate shall be required for issuances of Common Shares pursuant to an Issuer plan for reinvestment of dividends or interest. Except as expressly provided in section 7.1, no adjustment in the Conversion Rate shall be required for issuances of Common Shares or any Convertible Securities, including the issuance of Common Shares or options to purchase Common Shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Issuer, upon the issuance of Common Shares pursuant to any option, warrant or right, or exercise of any exchangeable or convertible security outstanding as of the Issue Date, and repurchases by the Issuer of Common Shares not expressly discussed in this Article 7.
|
(d)
|
To the extent that the Debentures become convertible into the right to receive cash, no adjustment need be made thereafter as to the cash.
|
7.3
|
Notice of Adjustment
|
7.4
|
Notice of Certain Transactions
|
7.5
|
Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.
|
(a)
|
any recapitalization, reclassification or change of the Common Shares, other than changes resulting from a subdivision or a combination,
|
(b)
|
a consolidation, amalgamation, merger, arrangement or combination involving the Issuer,
|
(c)
|
a sale, conveyance or lease to another corporation of all or substantially all of the property and assets of the Issuer, other than one or more of the Issuer’s Subsidiaries, or
|
(d)
|
any statutory share exchange,
|
7.6
|
Voluntary Increase
|
7.7
|
Protection of Trustee
|
8.1
|
Limitation on Indebtedness
|
(a)
|
the Debentures and the Guarantees;
|
(b)
|
Specified Senior Indebtedness in an aggregate principal amount at any one time outstanding not to exceed $550,000,000;
|
(c)
|
Indebtedness in an aggregate principal amount at any one time outstanding not to exceed $450,000,000, comprised of:
|
(i)
|
Indebtedness secured by a Purchase Money Security Interest including Capital Leases;
|
(ii)
|
Indebtedness incurred in connection with a sale and leaseback of real property;
|
(iii)
|
Indebtedness incurred under a securitization or factoring of receivables;
|
(iv)
|
Indebtedness of any Subsidiary acquired by the Issuer or its Subsidiaries that existed prior to such acquisition and not incurred in contemplation of such acquisition;
|
(v)
|
Indebtedness incurred to finance insurance premiums;
|
(vi)
|
other Indebtedness (other than Specified Senior Indebtedness) provided that such Indebtedness shall be unsecured; or
|
(vii)
|
Indebtedness incurred to refinance any Indebtedness referred to in clauses (i) through (vi) above.
|
(d)
|
Indebtedness that by its terms is subordinated to the Debentures or to the applicable Guarantee, as the case may be, on terms substantially similar, mutatis mutandis, to the provisions of Article 4 herein and has a maturity at least six months after the Maturity Date; and
|
(e)
|
Indebtedness owing by the Issuer to any of its Subsidiaries and Indebtedness owing by a Subsidiary of the Issuer to the Issuer or any of its Subsidiaries; provided that if any such Indebtedness (i) is owed by the Issuer or a Guarantor to a Subsidiary that is not a Guarantor and (ii) together with all other Indebtedness owed by the Issuer and the Guarantors to such non-Guarantor Subsidiary is in an aggregate principal amount outstanding at any one time in excess of $10,000,000, then such Indebtedness shall at such time be subordinated to the Debentures or to the applicable Guarantee, as the case may be, on terms substantially similar, mutatis mutandis, to the provisions of Article 4 herein; provided further that with respect any such Indebtedness outstanding as of the date of this Indenture, the Issuer shall not be required to effect such subordination with respect thereto until the date that is 30 days after the date of this Indenture.
|
8.2
|
Negative Pledge
|
8.3
|
Dividend Increase
|
8.4
|
No Merger
|
8.5
|
Hedging
|
9.1
|
Payment of Principal, Premium and Interest
|
9.2
|
Corporate Existence; Books of Account
|
(a)
|
it and (except pursuant to a transaction not prohibited by this Indenture) each of the Guarantors will at all times maintain its corporate existence; and
|
(b)
|
it and each of the Guarantors will keep or cause to be kept proper books of account in accordance with GAAP.
|
9.3
|
Compliance Certificate
|
9.4
|
Notice of Default
|
9.5
|
Securities Laws
|
(a)
|
unless a Change of Control has occurred, it will take all reasonable steps and actions and do all such acts and things as may be required to: (i) as long as it meets the applicable minimum distribution requirements, if any, of such institutions, maintain the listing and posting for trading of the Common Shares and, as applicable, the Debentures on a Recognized Stock Exchange, and (ii) maintain its status as a reporting issuer or equivalent in good standing or equivalent under the Applicable Securities Laws in the Provinces of Canada in which the Issuer is currently a reporting issuer or equivalent; and
|
(b)
|
it will, at the relevant times and upon exercise of the relevant rights or elections, comply and take all measures necessary to comply at all times with subsection 5.1(e) including, without limitation, make application for any order, ruling, registration or filing or give any notice required under Applicable Securities Laws; and
|
(c)
|
the Trustee shall have no obligation to verify information relating to the Issuer’s compliance with this section 9.5 and may act and rely upon all information provided by the Issuer with respect to such compliance, without independent inquiry.
|
9.6
|
Reporting
|
(a)
|
The Issuer shall provide to the Trustee (or file on SEDAR or any successor thereto)
an annual information form and the continuous disclosure documents that must be filed with Canadian securities regulatory authorities pursuant to Applicable Securities Laws in the Provinces of Canada in which the Issuer is a “reporting issuer” (as such term is defined in such Applicable Securities Laws) within fifteen (15) days from the date such documents are required to be filed with Canadian securities regulatory authorities pursuant to Applicable Securities Laws.
|
(b)
|
In the event the Issuer is no longer subject to Applicable Securities Laws, the Issuer shall notify the Trustee, and the Issuer shall continue to provide to the Trustee, the Holders, and, upon request, Beneficial Holders, (a) within ninety (90) days after the end of each Fiscal Year, copies of its annual financial statements and related management’s discussion and analysis (
“MD&A”
), and (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each Fiscal Year, interim
|
(c)
|
In the event the Issuer is no longer subject to Applicable Securities Laws, the Issuer undertakes to do the following:
|
(i)
|
hold a quarterly conference call to discuss the quarterly and annual information contained in the disclosure documents provided in subsection 9.6(b) no later than five (5) Business Days from the time the Issuer furnishes such documents to the Trustee;
|
(ii)
|
no fewer than three (3) Business Days prior to the date of the conference call required to be held in accordance with section 9.6(c)(i), issue a press release to the appropriate wire service for broad dissemination in Canada announcing the time and date of such conference call and directing the Beneficial Holders, prospective investors and securities analysts to contact the investor relations office of the Issuer to obtain the reports and information and instructions regarding how to access such conference call; and
|
(iii)
|
either:
|
(1)
|
maintain an unrestricted public website to which Beneficial Holders, prospective investors and securities analysts are given access and to which the continuous disclosure documents described in section 9.6(b) and conference call access details are posted, or
|
(2)
|
maintain a non-public website to which beneficial owners of the Debentures, prospective investors and securities analysts are given access and to which the reports and conference call access details are posted, or
|
(3)
|
distribute via e-mail such reports and conference call details to Beneficial Holders, prospective investors and securities analysts who request to receive such distributions.
|
(d)
|
Promptly after the same shall have come to the attention of any responsible officer of the Issuer, the Issuer shall provide written notice of the occurrence of any Default or Event of Default hereunder to the Trustee.
|
9.7
|
Reserved
|
9.8
|
Performance of Covenants by Trustee
|
9.9
|
Payment of Trustee’s Remuneration
|
9.10
|
[Intentionally Deleted]
|
9.11
|
Further Instruments and Acts
|
9.12
|
No Dividends on Common Shares if Event of Default
|
10.1
|
Events of Default and Enforcement
|
(i)
|
a default in payment of any principal amount or any purchase price, or Change of Control Repurchase Price with respect to the Debentures, when the same becomes due and payable;
|
(ii)
|
a default in payment of interest (including any Additional Amounts) on any Debentures when due and payable and the continuance of such default for ten (10) days;
|
(iii)
|
a default in the observance of the covenant contained in subsection 9.5(a) or 11.3(a) and the continuance of such default for five (5) Business Days;
|
(iv)
|
default in the delivery to any Holder when due of Common Shares and any cash payable upon conversion with respect to the Debentures, which default continues for three (3) Business Days;
|
(v)
|
a default by the Issuer or any Guarantor in performing or observing any of the other covenants, agreements or obligations of the Issuer or the Guarantor, as the case may be, as described herein, and the continuance of such default for thirty (30) days after written notice to the Issuer by the Trustee or by the Holders of not less than 25% in principal amount of Outstanding Debentures requiring the same to be remedied;
|
(vi)
|
the failure to make a Change of Control Repayment Offer upon the occurrence of a Change of Control;
|
(vii)
|
a decree, judgment, or order by a court having jurisdiction in the premises shall have been entered adjudging the Issuer or any Guarantor bankrupt or insolvent or approving as properly filed a petition seeking reorganization, readjustment, arrangement, composition or similar relief for the Issuer or any Guarantor, under the
Bankruptcy and Insolvency Act
(Canada),
Companies’ Creditors Arrangement Act
(Canada) or any other similar bankruptcy, insolvency or analogous applicable law and such decree, judgment or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Issuer or any Guarantor or of a substantial part of its property, or for the winding up or liquidation of its affairs, shall have remained in force for a period of thirty (30) consecutive days; or any substantial part of the property of the Issuer or any Guarantor shall be sequestered or attached and shall not be returned to the possession of the Issuer or any Guarantor or released from such attachment, as the case may be, whether by filing of a bond, or stay or otherwise, within thirty (30) consecutive days thereafter;
|
(viii)
|
the Issuer or any Guarantor shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under the
Bankruptcy and Insolvency Act
(Canada),
Companies’ Creditors Arrangement Act
(Canada) or any other similar bankruptcy, insolvency or analogous applicable law or shall consent to the filing of any such petition, or shall consent to the
|
(ix)
|
a resolution is passed for the winding-up or liquidation of the Issuer or any Guarantor except in the course of carrying out or pursuant to a transaction in respect of which the conditions of section 15.1 are duly observed and performed;
|
(x)
|
any of the Guarantees shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of a Guarantor, shall deny or disaffirm its obligations under its Guarantee; and
|
(xi)
|
(A) if the Issuer or any Guarantor is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount on any Indebtedness that is outstanding in an aggregate principal amount of more than $50,000,000 (or its equivalent in the relevant currency of payment) beyond any period of grace provided with respect thereto, or (B) if the Issuer or any Guarantor is in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of more than $50,000,000 (or its equivalent in the relevant currency of payment) or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and in each case as a consequence of such default or condition such Indebtedness has become or has been declared due and payable before its stated maturity or before its regularly schedule dates of payment, or (C) as a consequence of the occurrence or continuation of any event or condition (other than (a) the passage of time or (b) the right of the holder of Indebtedness to convert such Indebtedness into equity interests or (c) any mandatory prepayment provisions in an agreement governing Indebtedness unless such provisions also require the permanent prepayment of all Indebtedness then outstanding and, if applicable, the permanent cancellation of all other amounts available to be borrowed under such agreement), the Issuer or any Guarantor has become obligated to purchase or repay Indebtedness (including any Specified Senior Indebtedness but excluding the Debentures) before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of more than $50,000,000 (or its equivalent in the relevant currency of payment); and
|
(xii)
|
failure by the Issuer or any of its Subsidiaries to pay final judgments aggregating in excess of an amount greater than $50,000,000 in cash (net of any amounts for which an insurance company is liable) rendered against the Issuer or any of its Subsidiaries by a court of competent jurisdiction, which judgments are not paid, discharged or stayed for a period of 30 days after such judgments become final and non-appealable.
|
10.2
|
Notice of Event of Default
|
10.3
|
Waiver of Acceleration
|
(a)
|
if the Issuer has paid to or deposited with the Trustee a sum sufficient to pay:
|
(i)
|
all overdue interest on all Debentures;
|
(ii)
|
the principal of (and premium, if any) any of the Debentures which have become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor in such Debentures; and
|
(iii)
|
to the extent that payment of such interest is lawful and applicable, interest upon overdue instalments of interest at the rate or rates prescribed therefor in such Debentures;
|
(b)
|
all Events of Default with respect to the Debentures, other than the non-payment of the principal of (and premium, if any), and interest on, such Debentures which have become due solely by such declaration of acceleration, have been cured or waived in accordance with the provisions of this Indenture; and
|
(c)
|
the rescission would not conflict with any judgement or degree of a court of competent jurisdiction.
|
10.4
|
Waiver
|
(a)
|
The Holders of not less than 66 2/3% in aggregate principal amount of the Outstanding Debentures may on behalf of the Holders of all Debentures waive any past Default hereunder and its consequences, except a Default:
|
(i)
|
in the payment of the principal of (or premium, if any) or interest on any Debentures;
|
(ii)
|
in respect of a covenant or provision hereof that under Article 17 cannot be modified or amended without an Extraordinary Resolution passed by the Holders; or
|
(iii)
|
the uncured failure by the Issuer to deliver Common Shares when so required pursuant to this Indenture;
|
(b)
|
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture. No such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
|
10.5
|
Other Remedies
|
(a)
|
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of (and premium, if any) or interest on Debentures or to enforce the performance of any term of the Debentures or this Indenture.
|
(b)
|
The Trustee may maintain a Proceeding even if it does not possess any Debentures or does not produce any of them in the Proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.
|
10.6
|
Application of Money Collected
|
(a)
|
first, to the payment of all amounts due to the Trustee under this Indenture with respect to such Debentures;
|
(b)
|
second, to the payment of accrued interest on such Debentures;
|
(c)
|
third, to the payment of the principal of (and premium, if any) on such Debentures;
|
(d)
|
fourth, to the payment of any other amounts with respect to such Debentures; and
|
(e)
|
fifth, to whomever may be lawfully entitled to receive the balance of such money.
|
10.7
|
Control by Holders
|
(a)
|
Subject to the provisions of section 10.8, the Holders of at least a majority in principal amount of the Outstanding Debentures may:
|
(i)
|
direct the time, method and place in the Province of Ontario for conducting any Proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to the Debentures; and
|
(ii)
|
take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of Debentures under any provisions of this Indenture or under Applicable Law.
|
(b)
|
The Trustee may refuse, however, to follow any direction that conflicts with law or this Indenture.
|
10.8
|
Limitation on Suits
|
10.9
|
Collection Suit by Trustee
|
10.10
|
Trustee May File Proofs of Claim
|
10.11
|
Undertaking for Costs
|
10.12
|
Remedies Cumulative
|
10.13
|
Delay or Omission Not Waiver
|
10.14
|
Judgment Against the Issuer
|
10.15
|
Rights of Holders to Receive Payment and to Convert
|
11.1
|
Guarantors
|
11.2
|
Waiver Regarding Material Information
|
11.3
|
Opinion Regarding Guarantors
|
(a)
|
The Issuer shall, within forty-five (45) days of the date that a Subsidiary becomes a Guarantor after the date hereof, deliver to the Trustee an Opinion of Counsel (in form and substance reasonably acceptable to Counsel to the Trustee, including customary
|
12.1
|
Non-Presentation of Debentures
|
(a)
|
the Issuer shall thereafter be entitled to pay or deliver to the Trustee and direct the Trustee to set aside;
|
(b)
|
in respect of moneys or Common Shares in the hands of the Trustee which may or should be applied to the payment of the Debentures, the Issuer shall thereafter be entitled to direct the Trustee to set aside; or
|
(c)
|
if the redemption was made pursuant to any Notice given by the Trustee, the Trustee may itself thereafter set aside,
|
12.2
|
Discharge
|
13.1
|
Duties of Trustee
|
13.2
|
Employ Agents
|
13.3
|
Reliance on Evidence of Compliance
|
13.4
|
Provision of Evidence of Compliance to Trustee
|
(a)
|
the certification pursuant to section 2.7 and delivery of Debentures;
|
(b)
|
the satisfaction and discharge of this Indenture; or
|
(c)
|
the taking of any other action or step to be taken by the Trustee at the request, or on the application, of the Issuer.
|
13.5
|
Contents of Evidence of Compliance
|
(a)
|
an Officer’s Certificate certifying that the conditions precedent referred to in such Officer’s Certificate have been complied with in accordance with the terms of this Indenture;
|
(b)
|
in the case of conditions precedent compliance with which are, pursuant to this Indenture, made subject to review or examination by Counsel, an Opinion of Counsel to the Issuer that such conditions precedent have been complied with in accordance with the terms of this Indenture; and
|
(c)
|
in the case of conditions precedent compliance with which are subject to the review or examination by auditors or appraisers, an opinion or report of a chartered accountant or appraiser, as the case may be, approved by the Trustee acting reasonably, that such conditions precedent have been complied with in accordance with the terms of this Indenture.
|
(i)
|
a statement that the Person making such certificate or opinion has read such covenant or condition;
|
(ii)
|
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
|
(iii)
|
a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
|
(iv)
|
a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with;
|
13.6
|
Advice of Experts
|
13.7
|
Trustee May Deal in Debentures
|
13.8
|
Conditions Precedent to Trustee’s Obligation to Act
|
(a)
|
The Trustee shall not be bound to give any notice, or to do, observe or perform or see to the observance or performance by the Issuer of any of the obligations imposed under the Indenture or to supervise or interfere with any of the activities of the Issuer, or to do or take any act, action or Proceeding by virtue of the powers conferred on it by this Indenture, unless and until it shall have been required to do so under the terms of this Indenture; nor shall the Trustee be required to take notice of any default or Event of Default, other than in payment of any moneys required by this Indenture to be paid to the Trustee, unless and until notified in writing of such default or Event of Default by the Issuer or by any Holder, which notice shall distinctly specify such default or Event of Default, and in the absence of any such notice the Trustee may conclusively assume that no default or Event of Default has occurred. Any such notice or requisition shall in no way limit any discretion given to the Trustee in this Indenture to determine whether or not to take action with respect to any default or Event of Default or with respect to any such requisition.
|
(b)
|
The obligation of the Trustee to do any of the actions referred to in subsection (a), including to commence or to continue any Proceeding or any right of the Trustee or the Holders, shall be conditional upon the Holders furnishing, when required by notice in writing by the Trustee, sufficient funds to commence or continue such action and an indemnity satisfactory to the Trustee to protect and hold harmless the Trustee against
|
13.9
|
Trustee Not Required to Give Security
|
13.10
|
Resignation or Removal of Trustee; Conflict of Interest
|
(a)
|
The Trustee represents and warrants to the Issuer that at the time of the execution and delivery of this Indenture no material conflict of interest exists with respect to the Trustee’s role as a fiduciary hereunder.
|
(b)
|
The Trustee may resign as trustee hereunder by giving not less than sixty (60) days’ notice in writing to the Issuer or such shorter notice as the Issuer may accept as sufficient. The Trustee shall resign if a material conflict of interest arises with respect to its role as trustee under this Indenture that is not eliminated within ninety (90) days after the Trustee becomes aware of such conflict of interest. Immediately after the Trustee becomes aware that it has a material conflict of interest it shall provide the Issuer with written notice of the nature of that conflict. Upon any such resignation, the Trustee shall be discharged from all further duties and liabilities under this Indenture. None of the validity and enforceability of this Indenture or the Debentures shall be affected in any manner whatsoever by reason only of the existence of a material conflict of interest on the part of the Trustee (whether arising prior to or after the date of this Indenture). If the Trustee does not comply with this section, any Holder or the Issuer may apply to the Ontario Superior Court of Justice sitting in Toronto for an order that the Trustee be replaced as trustee under this Indenture.
|
(c)
|
In the event of the Trustee resigning or being removed by the Holders by Extraordinary Resolution or by the Issuer or being dissolved, becoming insolvent or bankrupt, going into liquidation or otherwise becoming incapable of acting as trustee under this Indenture, the Issuer shall immediately appoint a successor Trustee unless a successor Trustee has already been appointed by the Holders; failing such appointment by the Issuer, the retiring Trustee or any other Holder may apply to a judge of the Ontario Superior Court of Justice sitting in Toronto, on such notice as such judge may direct, for the appointment of a successor Trustee. The successor Trustee so appointed by the Issuer or by such court shall be subject to removal by the Holders by way of an Act of Holders. Any successor Trustee appointed under any provision of this section shall be a corporation authorized to carry on the business of a trust company in Canada. On any appointment of the successor Trustee, the successor Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named in this Indenture as Trustee. The expenses of all acts, documents and Proceedings required under this section will be paid by the Issuer in the same manner as if the amount thereof were fees payable to the Trustee under this Indenture.
|
(d)
|
Any successor Trustee shall, immediately upon appointment, become vested with all the estates, properties, rights, powers and trusts of its predecessor in the trusts under this Indenture, with like effect as if originally named as Trustee hereunder.
|
(e)
|
Any corporation into which the Trustee is amalgamated or with which it is consolidated or to which all or substantially all of its corporate trust business is sold or is otherwise transferred or any corporation resulting from any consolidation or amalgamation to which the Trustee is a party shall be a successor Trustee under this Indenture, without the execution of any document or any further act; provided that such successor Trustee is a corporation qualified to carry on the business of a trust company in Canada and shall not have a material conflict of interest in its role as a fiduciary under this Indenture.
|
13.11
|
Authority to Carry on Business; Resignation
|
13.12
|
Protection of Trustee
|
(a)
|
the Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Debentures (except as provided in subsection 2.7(d) and sections 13.11 and 13.13 which are being given by the Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Issuer;
|
(b)
|
the Trustee shall not be bound to give to any Person notice of the execution of this Indenture unless and until an Event of Default and a declaration of acceleration has occurred, and the Trustee has determined or become obliged to enforce the same;
|
(c)
|
the Trustee shall not incur any liability or be in any way responsible for the consequence of any breach on the part of the Issuer of any of the covenants contained in this Indenture or of any acts of the agents or servants of the Issuer;
|
(d)
|
the Issuer indemnifies and saves harmless the Trustee and its officers, directors and employees and agents from and against any and all liabilities, losses, costs, claims, actions, expenses (including legal fees and disbursements on a solicitor and client basis) or demands whatsoever which may be brought against the Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Trustee contemplated by this Indenture, and including legal fees and disbursements on a full indemnity basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Trustee, save only in the event of the gross negligence in acting or failing to act, or the wilful misconduct, dishonesty or bad faith of the Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Trustee;
|
(e)
|
without limiting the generality of subsection 13.12(d), the Issuer will indemnify and hold harmless the Trustee and upon written request reimburse the Trustee for the amount of (i) any taxes levied or imposed and paid by the Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Trustee as a result of payments made under or with respect to the Debentures, and (iii) any taxes levied or imposed and paid by the Trustee with respect to reimbursement under (a) and (b) above, but excluding any taxes on the Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Trustee’s capital.
|
(f)
|
the Trustee shall not be liable by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or in the Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Issuer only;
|
(g)
|
the Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it under this Indenture, act by the responsible officers of the Trustee; the Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Trustee may think to be in the best interest of the Holders;
|
(h)
|
the Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter under this Indenture, unless the Trustee shall have received from the Issuer or a Holder written notice stating the matter in respect of which the Trustee should have notice or actual knowledge;
|
(i)
|
the Trustee shall not be bound to act in accordance with any direction or request of the Issuer until an executed copy of the document containing the direction or request has been delivered to the Trustee, and the Trustee shall be fully empowered to act and
|
(j)
|
the Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Issuer or of any Person on whose signature the Trustee may be called upon to act or refrain from acting under this Indenture;
|
(k)
|
the Trustee shall not be liable for any error of judgment made in good faith, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
|
(l)
|
the Trustee shall not be liable with respect to any action it takes or omits to take in accordance with the direction of the Holders given in accordance with the terms of this Indenture save only in the event of the gross negligence in acting or failing to act, or the wilful misconduct, dishonesty or bad faith of the Trustee; and
|
(m)
|
in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity or profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
|
13.13
|
Additional Representations and Warranties of Trustee
|
(a)
|
the Trustee is a trust company validly existing under the laws of its jurisdiction of incorporation;
|
(b)
|
the Trustee has full power, authority and right to execute and deliver and perform its obligations under this Indenture, and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture; and
|
(c)
|
this Indenture has been duly executed and delivered by the Trustee.
|
13.14
|
Third Party Interests
|
13.15
|
Trustee Not Bound to Act
|
13.16
|
Compliance with Privacy Laws
|
13.17
|
Force Majeure
|
13.18
|
SEC Reporting
|
14.1
|
Purposes for Which Meetings May be Called
|
14.2
|
Call, Notice and Place of Meetings
|
(a)
|
The Trustee may at any time and from time to time and shall, on receipt of an Issuer Request or a requisition in writing made by the Holders of at least 5% in principal amount of the Outstanding Debentures and upon being indemnified and funded to its reasonable satisfaction by the Issuer or upon being funded and indemnified to its reasonable satisfaction by the Holders making such requisition, as the case may be, against the costs which may be incurred in connection with the calling and holding of such meeting, call a meeting of Holders for any purpose specified in section 14.1, to be held at such time and at such place in the City of Toronto, Province of Ontario, as the Trustee shall determine. Notice of every meeting of Holders, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in section 16.2, not less than twenty-one (21) or more than sixty (60) days prior to the date fixed for the meeting.
|
(b)
|
If at any time the Issuer, pursuant to a Board Resolution, or the Holders of at least 5% in principal amount of the Outstanding Debentures shall have requested the Trustee to call a meeting of the Holders for any purpose specified in section 14.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication, or mailing, as the case may be, of the notice of such meeting within thirty (30) days after receipt of such request, funding and indemnity or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Issuer or the Holders in the amount above specified, as the case may be, may determine the time and the place in the City of Toronto, Province of Ontario, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a).
|
14.3
|
Proxies
|
(a)
|
the form of the instrument appointing a proxy, which shall be in writing, and the manner in which the same shall be executed and the production of the authority of any Person signing on behalf of a Holder;
|
(b)
|
the deposit of instruments appointing proxies at such place as the Trustee, the Issuer or the Holder convening the meeting, as the case may be, may in the notice convening the meeting, direct and the time, if before the holding of the meeting or any adjournment thereof by which the same must be deposited; and
|
(c)
|
the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, faxed, or sent by other electronic communication before the meeting to the Issuer 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.
|
14.4
|
Persons Entitled to Vote at Meetings
|
14.5
|
Quorum; Action
|
(a)
|
Persons entitled to vote 25% in principal amount of Outstanding Debentures shall constitute a quorum for a meeting of Holders. In the absence of a quorum within thirty (30) minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders, be dissolved. In the absence of a quorum in any other case the meeting may be adjourned for a period of not less than ten (10) days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, the Holders present or represented at such adjourned meeting shall constitute the quorum and the business for which the meeting was adjourned may be transacted. Notice of the reconvening of any adjourned meeting shall be given as provided in subsection 14.2(a), except that such notice need be given only once not less than five (5) days prior to the date on which the meeting is scheduled to be reconvened.
|
(b)
|
Except as limited by subsection 17.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of Holders of a majority in principal amount of the Debentures present or represented by proxy at such meeting or adjourned meeting; provided, however, that, except as limited by subsection 17.2, any resolution with respect to any Act that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of Outstanding Debentures may be adopted at a meeting or an adjourned
|
(c)
|
Any resolution passed or decision taken at any meeting of Holders duly held in accordance with this section 14.5 will be binding on all Holders, whether or not present or represented at the meeting.
|
14.6
|
Determination of Voting Rights; Chairman; Conduct and Adjournment of Meetings
|
(a)
|
Notwithstanding any other provisions of this Indenture, the Trustee or the Issuer, with the approval of the Trustee, may make and from time to time may vary such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Debentures and the appointment of proxies and in regard to the appointment and duties of scrutineers of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted by any such regulations, the holding of Debentures shall be proved in the manner specified in section 1.12 and the appointment of any proxy shall be proved in the manner specified in section 1.12. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in section 1.12 or other proof.
|
(b)
|
The Trustee shall, by an instrument in writing, appoint a chairman and secretary of the meeting, unless the meeting shall have been called by the Issuer or by Holders as provided in subsection 14.2(b), in which case the Issuer or the Holders calling the meeting, as the case may be, shall in like manner appoint a chairman and secretary.
|
(c)
|
At any meeting of Holders, each Holder of a Debenture or proxy shall be entitled to one vote for each one thousand Dollars ($1,000) principal amount of Debentures held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Debenture 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 Debenture or proxy.
|
(d)
|
Any meeting of Holders duly called pursuant to subsection 14.2(b) at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of Outstanding Debentures represented at the meeting and the meeting may be held as so adjourned without further notice.
|
14.7
|
Counting Votes and Recording Action of Meetings
|
14.8
|
Instruments in Writing
|
14.9
|
Holdings by the Issuer Disregarded
|
15.1
|
Amalgamation and Consolidations of Issuer and Conveyances Permitted Subject to Certain Conditions
|
(a)
|
either (1) the Issuer or such Guarantor (as the case may be) shall be the continuing corporation, or (2) the successor corporation (or the Person that leases or that acquires by conveyance, sale or transfer all or substantially all of the Issuer’s assets) (such corporation or Person being referred to as the
“Successor Issuer”
or
“Successor Guarantor”
as the case may be) (x) shall be organized and existing under (A) in the case of a Successor Issuer, the laws of Canada or of any province thereof, the United States or any State thereof or the District of Columbia or (B) in the case of a Successor Guarantor, the laws of Canada or of any province thereof, the United States or any State thereof or the District of Columbia, or the jurisdiction in which the Guarantor
|
(b)
|
in the case of a transaction to which the Issuer is a party and the Issuer is not the continuing corporation the Debentures will be valid and binding obligations of the Successor Issuer entitling the Holders thereof, as against the Successor Issuer, to all the rights of Holders under this Indenture;
|
(c)
|
the Issuer, the Guarantor, or such Successor Issuer or Successor Guarantor, as the case may be, shall not immediately thereafter be in default under this Indenture or the Debentures and no event that, after notice or passage time, would become an Event of Default, shall have occurred and be continuing;
|
(d)
|
except in the case of a transaction resulting in a Change of Control, in the case of a transaction to which the Issuer is a party, either the Issuer will remain or the Successor Issuer will be a reporting issuer or equivalent in good standing or equivalent under Applicable Securities Laws in the jurisdictions in which such entity is a reporting issuer and shall have securities into which the Debentures may be converted which securities are (i) listed for trading on a Recognized Stock Exchange, and (ii) Prescribed Securities; and
|
(e)
|
if the Issuer or the relevant Guarantor, as the case may be, will not be the continuing corporation, the Issuer shall have, at or prior to the effective date of such consolidation, merger, transfer or other transaction, delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, transfer or other transaction complies with this section 15.1 and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article, and that all conditions precedent herein provided for and relating to such transaction have been complied with.
|
15.2
|
Rights and Duties of Successor Issuer or Successor Guarantor
|
(a)
|
In case of any such amalgamation, reorganization, arrangement, conveyance, sale, transfer or lease and upon any such assumption by a Successor Issuer or Successor Guarantor, such Successor Issuer or Successor Guarantor shall, in the case of a Successor Issuer, agree to be bound by the terms of this Indenture as principal obligor in place of the Issuer, and in the case of a Successor Guarantor, the relevant Guarantee, with the same effect as if it had been named herein as the Issuer or a Guarantor. Any such Successor Issuer thereupon may cause to be signed, and may issue either in its own name or in the name of the Issuer, any or all Debentures which theretofore shall not have been signed by the Issuer and delivered to the Trustee. All Debentures so issued shall in all respects have the same legal rank and benefit under this Indenture as Debentures theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debentures have been issued at the date of the execution hereof.
|
(b)
|
In the case of any such amalgamation, reorganization, arrangement, conveyance, sale, transfer or lease, such changes in phraseology and form (but not in substance) may be made in Debentures thereafter to be issued as may be appropriate.
|
16.1
|
Notice to Issuer
|
16.2
|
Notice to Holders
|
(a)
|
Any Notice to Holders may be effectively given if personally delivered, couriered, sent by facsimile transmission (with receipt confirmed), or mailed, in each case at the post office address appearing in the relevant register and such Notice shall be deemed to have been received by a Holder, where given by delivery, on the day of delivery, where sent by facsimile transmission (with receipt confirmed) on the day of transmittal
|
(b)
|
If the regular mail service is suspended or for any other reason it shall be impracticable to give Notice to Holders by mail, then such notification to Holders may be given by the publication of the Notice once in a daily newspaper with national circulation in Canada or in any other manner approved by the Trustee, and it shall constitute sufficient Notice to such Holders for every purpose hereunder. In any case where Notice to Holders is given by mail, neither the failure to mail such Notice nor any defect in any Notice so mailed to any particular Holder shall affect the sufficiency of such Notice with respect to other Holders.
|
(c)
|
Any Notice sent to the Holders as provided above shall be effective notwithstanding that any such Notice has accidentally or inadvertently not been delivered or mailed to one or more such Holders.
|
16.3
|
Notice to Trustee
|
17.1
|
Without Consent of Holders
|
(a)
|
evidencing a successor to the Issuer or a Guarantor and the assumption by that successor of the Issuer’s or one or more Guarantors’ obligations under this Indenture, the Guarantee and the Debentures;
|
(b)
|
adding to the Issuer’s or the Guarantors’ covenants for the benefit of the Holders or surrendering any right or power conferred upon the Issuer or the Guarantor;
|
(c)
|
securing the Issuers or one or more of the Guarantors’ obligations in respect of the Debentures;
|
(d)
|
adding a Guarantor;
|
(e)
|
evidencing and providing for the acceptance of the appointment of a successor trustee in accordance with Article 13;
|
(f)
|
complying with the requirements of the
Business Corporations Act
(Ontario)
applicable to trust indentures;
|
(g)
|
curing any ambiguity, omission or inconsistency or correcting or supplementing any defective provision contained in this Indenture; or
|
(h)
|
making any other changes to the Indenture that do not adversely affect the interest of the Holders in any material respect.
|
17.2
|
With Consent of Holders
|
(a)
|
The Issuer and the Trustee may amend or supplement this Indenture, the Guarantees or the Debentures with the written consent of the Holders of at least a majority in aggregate principal amount of the Debentures then outstanding. However, without approval thereof by Extraordinary Resolution, an amendment, supplement or waiver may not:
|
(i)
|
alter the manner of calculation or rate of accrual of interest on the Debentures or change the time of payment;
|
(ii)
|
make the Debentures convertible into securities other than Common Shares;
|
(iii)
|
change the Stated Maturity of the principal of, or any instalment of interest on, any Debenture;
|
(iv)
|
reduce the principal amount or Change of Control Repurchase Price with respect to the Debenture;
|
(v)
|
make any change that adversely affects the rights of Holders to require the Issuer to purchase the Debentures at the option of Holders;
|
(vi)
|
impair the right to institute suit for the enforcement of any payment with respect to the Debenture or with respect to conversion of the Debenture;
|
(vii)
|
change the currency of payment of principal of, or interest on, the Debenture;
|
(viii)
|
except as otherwise permitted or contemplated by provisions of the Indenture concerning specified reclassification or corporate reorganizations, or otherwise pursuant to Article 7, change the Conversion Rate or otherwise adversely affect the conversion rights of the Holders;
|
(ix)
|
release any of the Guarantors from any of their obligations under the Guarantee or the Indenture, except in accordance with the Indenture;
|
(x)
|
change the provisions in the Indenture that relate to modifying or amending the Indenture.
|
(xi)
|
reduce the percentage in principal amount of the Outstanding Debentures, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or reduce the requirements of section 14.4 for voting or section 14.5 for quorum or;
|
(xii)
|
modify any of the provisions of this section 17.2 except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holders of Debentures expressed by Extraordinary Resolution
|
(b)
|
After an amendment, supplement or waiver under this section 17.2 becomes effective, the Issuer shall promptly mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
|
17.3
|
Execution of Supplemental Indentures
|
17.4
|
Effect of Supplemental Indentures
|
17.5
|
Reference in Debentures to Supplemental Indentures
|
17.6
|
Prior Approval of Recognized Stock Exchange
|
18.1
|
Acceptance of Trusts
|
18.2
|
Protection of Trustee
|
18.3
|
Judgment Currency
|
18.4
|
Counterparts and Formal Date
|
18.5
|
Waiver of Trial by Jury
|
18.6
|
Notice by Fax or E-mail
|
|
|
BNY TRUST COMPANY OF CANADA
|
|
By:
|
/s/ Ismail Bawa
|
||
|
Name:
Ismail Bawa
|
||
|
Title: Authorized Signatory
|
||
|
|
BLACKBERRY LIMITED
|
|
By:
|
/s/ James Yersh
|
||
|
Name:James Yersh
|
||
|
Title:Chief Financial Officer
|
||
|
|
BLACKBERRY CORPORATION
|
|
By:
|
/s/ James Yersh
|
||
|
Name:James Yersh
|
||
|
Title:President
|
||
|
|
BLACKBERRY UK LIMITED
|
|
By:
|
/s/ James Yersh
|
||
|
Name:James Yersh
|
||
|
Title:Director
|
|
|
GOOD TECHNOLOGY CORPORATION
|
|
By:
|
/s/ James Yersh
|
||
|
Name:James Yersh
|
||
|
Title:President
|
||
|
|
QNX SOFTWARE SYSTEMS LIMITED
|
|
By:
|
/s/ James Yersh
|
||
|
Name:James Yersh
|
||
|
Title:Secretary
|
(a)
|
the interests of lessors under operating leases, and interests of licensors under license agreements,
|
(b)
|
Liens on amounts deposited to secure Issuer’s and its Subsidiaries’ reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course of business,
|
(c)
|
licenses and sublicenses of patents, trademarks, copyrights, and other intellectual property rights,
|
(d)
|
rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions or upon securities in favor of securities intermediaries, solely to the extent incurred in connection with the maintenance of deposit accounts or securities accounts in the ordinary course of business,
|
(e)
|
Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted hereunder,
|
(f)
|
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods,
|
(g)
|
Liens solely on (A) any cash earnest money deposits made by the Issuer or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to an acquisition or (B) cash escrow deposits that secure any indemnification obligations of the Issuer or any of its Subsidiaries in connection with any agreement relating to a disposition,
|
(h)
|
Liens securing intercompany loans between the Issuer and a Guarantor or between Guarantors, and
|
(i)
|
Liens on cash collateral provided to secure the reimbursement obligations under any letter of credit to the extent such letter of credit constitutes permitted Indebtedness under Section 8.1.
|
|
|
BlackBerry Limited
|
|
Per:
|
|
||
|
|
||
|
|
||
Per:
|
|
||
|
|
||
|
|
|
|
BNY Trust Company of Canada, as Trustee
|
|
Per:
|
|
||
|
Authorized Signing Officer
|
Date
|
Amount
of Increase
|
Amount
of Decrease
|
New
Principal
Amount
|
Maturity
Date
|
Authorization
|
|
|
|
|
|
|
|
|
|
|
|
|
DATE
|
AMOUNT REDUCED
|
REMAINING
PRINCIPAL AMOUNT
|
AUTHORIZED
SIGNATORY BY
TRUSTEE
|
<*>
|
|
<*>
|
|
|
|
|
|
|
|
|
[Insert Name of Transferor]
|
By:
|
|
|
Name:
|
|
Title:
|
(a)
|
c
a beneficial interest in the:
|
(i)
|
c
Restricted Global Debenture (CUSIP __________)
|
(ii)
|
c
Unrestricted Global Debenture (CUSIP __________)
|
(b)
|
c
a Restricted Definitive Debenture
|
(c)
|
c
an Unrestricted Definitive Debenture
|
(a)
|
c
a beneficial interest in the:
|
(i)
|
c
Restricted Global Debenture (CUSIP __________)
|
(ii)
|
c
Unrestricted Global Debenture (CUSIP __________)
|
(b)
|
c
a Restricted Definitive Debenture
|
(c)
|
c
an Unrestricted Definitive Debenture
|
|
|
|
[Insert Name of Transferor]
|
By:
|
|
|
Name:
|
|
Title:
|
TO:
|
BNY Trust Company of Canada
|
TO:
|
BNY Trust Company of Canada
as trustee under the Indenture referred to below (the “
Trustee
”) providing for the issuance of Debentures (as defined therein) of
BlackBerry Limited
|
1.1
|
Guarantee
|
1.2
|
Indemnity
|
1.3
|
Guarantor Liable as Principal
|
1.4
|
Obligations Absolute
|
(a)
|
any lack of validity or enforceability of the Obligations or any agreement between the Obligor and the Trustee and each Holder or of the guarantee of any other guarantor of the obligations;
|
(b)
|
any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government;
|
(c)
|
the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Obligor or any other guarantor or Person or the amalgamation of or any change in the status, function, control or ownership of, the Obligor, the Guarantor, the Trustee or any other Person;
|
(d)
|
the release or amendment of any other guarantee of the Obligations;
|
(e)
|
any lack or limitation of power, incapacity or disability on the part of the Obligor or of the directors, partners or agents thereof or any other irregularity, defect or informality on the part of the Obligor in its obligations to the Trustee and each Holder; or
|
(f)
|
any other law, regulation or other circumstance that might otherwise constitute a defence available to, or a discharge of, the Guarantor, the Obligor or any other Person in respect of any or all of the Obligations or the liability of the Guarantor.
|
2.1
|
No Release
|
(a)
|
agree to any change in the time, manner or place of payment under, or in any other term of, any agreement between the Obligor and the Trustee or any Holder; or
|
(b)
|
grant time, renewals, extensions, indulgences, releases and discharges to the Obligor or any other guarantor;
|
(c)
|
take or abstain from taking or enforcing securities or collateral from the Obligor or from perfecting securities or collateral of the Obligor or any other Person;
|
(d)
|
accept compromises from the Obligor or any other guarantor;
|
(e)
|
apply all money at any time received from the Obligor or from securities or collateral received from the Obligor or any other guarantor in accordance with the Indenture; and
|
(f)
|
otherwise deal with the Obligor or any other guarantor and all other Persons and securities as the Trustee may see fit.
|
2.2
|
Release of Guarantor
|
2.3
|
No Exhaustion of Remedies
|
2.4
|
Prima Facie Evidence
|
2.5
|
No Set-off
|
2.6
|
Continuing Guarantee
|
2.7
|
Reinstatement
|
3.1
|
Demand
|
3.2
|
Interest
|
4.1
|
Subrogation
|
5.1
|
Equal Benefit
|
6.1
|
Binding Effect of the Guarantee
|
6.2
|
Entire Agreement
|
6.3
|
Amendments and Waivers
|
6.4
|
Severability
|
6.5
|
Waiver of Notice
|
6.6
|
Notices
|
(a)
|
To the Guarantor:
|
(b)
|
To the Trustee:
|
6.7
|
Governing Law
|
6.8
|
Headings
|
6.9
|
Extended Meanings
|
6.10
|
Definitions
|
|
|
______________________________________
GUARANTOR
|
|
By:
|
|
||
|
Name:
|
||
|
Title:
|
||
By:
|
|
||
|
Name:
|
||
|
Title:
|
2.
|
Corporate power and authority of the Guarantor to enter into the Guarantee and carry out its obligations.
|
3.
|
No authorization, approvals, orders, etc. required for the Guarantor to execute and deliver the Guarantee or perform its obligations other than as have been obtained.
|
4.
|
Due execution, delivery and enforceability of the Guarantee.
|
5.
|
The execution and delivery of the Guarantee and the performance of any of the terms hereof do not violate, contravene or breach any Applicable Law of Ontario or if the Guarantee is governed by the laws of a jurisdiction other than Ontario, the Applicable law of such jurisdiction (the “
Applicable Jurisdiction
”).
|
6.
|
For non-Canadian Guarantors, application of Ontario law in accordance with the choice of law in the Indenture by a court of competent jurisdiction in which the principal office of such Guarantor is located.
|
7.
|
For non-Canadian Guarantors, enforcement by a court of competent jurisdiction in Applicable Jurisdiction of a final and conclusive
in personam
judgment of an Ontario court without a re-examination of the merits of the issues determined by the proceedings in the Ontario court.
|
BlackBerry Limited
|
(Registrant)
|
Date:
|
|
September 7, 2016
|
|
By:
|
/s/ James Yersh
|
|
(Signature)
|
||||
|
James Yersh
Chief Financial Officer
|