Exhibit
7.1
ELDORADO GOLD CORPORATION
as
Issuer
and
[ ]
as U.S. Trustee
and
[ ]
as Canadian
Trustee
Indenture
Dated as of [
]
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
|
1
|
Section 1.01
|
Definitions
|
1
|
Section 1.02
|
Rules of Construction
|
10
|
Section 1.03
|
Compliance Certificates and Opinions
|
10
|
Section 1.04
|
Form of Documents Delivered to Trustees
|
11
|
Section 1.05
|
Acts of Holders
|
12
|
Section 1.06
|
Notices, Etc. to Trustees and Company
|
13
|
Section 1.07
|
Notice to Holders; Waiver
|
13
|
Section 1.08
|
Effect of Headings and Table of Contents
|
14
|
Section 1.09
|
Successors and Assigns
|
14
|
Section 1.10
|
Severability Clause
|
14
|
Section 1.11
|
Benefits of Indenture
|
14
|
Section 1.12
|
Governing Law
|
15
|
Section 1.13
|
Legal Holidays
|
15
|
Section 1.14
|
Agent for Service; Submission to Jurisdiction; Waiver of
Immunities
|
15
|
Section 1.15
|
Conversion of Judgment Currency
|
16
|
Section 1.16
|
Currency Equivalent
|
17
|
Section 1.17
|
Conflict with Trust Indenture Legislation
|
17
|
Section 1.18
|
Incorporators, Shareholders, Officers and Directors of the Company
Exempt from Individual Liability
|
17
|
Section 1.19
|
Waiver of Jury Trial
|
17
|
Section 1.20
|
Counterparts
|
17
|
Section 1.21
|
Force Majeure
|
18
|
ARTICLE TWO
SECURITIES FORMS
|
18
|
Section 2.01
|
Forms Generally
|
18
|
Section 2.02
|
Form of Trustee’s Certificate of Authentication
|
18
|
Section 2.03
|
Securities Issuable in Global Form
|
19
|
ARTICLE THREE
THE SECURITIES
|
20
|
Section 3.01
|
Issuable in Series
|
20
|
Section 3.02
|
Denominations
|
23
|
Section 3.03
|
Execution, Authentication, Delivery and Dating
|
23
|
Section 3.04
|
Temporary Securities
|
25
|
Section 3.05
|
Registration, Registration of Transfer and Exchange
|
27
|
Section 3.06
|
Mutilated, Destroyed, Lost and Stolen Securities
|
30
|
Section 3.07
|
Payment of Principal, Premium and Interest; Interest Rights
Preserved; Optional Interest Reset
|
31
|
Section 3.08
|
Optional Extension of Stated Maturity
|
34
|
Section 3.09
|
Persons Deemed Owners
|
34
|
Section 3.10
|
Cancellation
|
35
|
Section 3.11
|
Computation of Interest
|
35
|
Section 3.12
|
Currency and Manner of Payments in Respect of
Securities
|
35
|
Section 3.13
|
Appointment and Resignation of Successor Exchange Rate
Agent
|
38
|
ARTICLE FOUR
SATISFACTION AND DISCHARGE
|
39
|
Section 4.01
|
Satisfaction and Discharge of Indenture
|
39
|
Section 4.02
|
Application of Trust Money
|
40
|
ARTICLE FIVE
REMEDIES
|
40
|
Section 5.01
|
Events of Default
|
40
|
Section 5.02
|
Acceleration of Maturity; Rescission and Annulment
|
41
|
Section 5.03
|
Collection of Debt and Suits for Enforcement by
Trustees
|
42
|
Section 5.04
|
Trustees May File Proofs of Claim
|
43
|
Section 5.05
|
Trustees May Enforce Claims Without Possession of
Securities
|
43
|
Section 5.06
|
Application of Money Collected
|
44
|
Section 5.07
|
Limitation on Suits
|
44
|
Section 5.08
|
Unconditional Right of Holders to Receive Principal, Premium and
Interest
|
45
|
Section 5.09
|
Restoration of Rights and Remedies
|
45
|
Section 5.10
|
Rights and Remedies Cumulative
|
45
|
Section 5.11
|
Delay or Omission Not Waiver
|
45
|
Section 5.12
|
Control by Holders
|
46
|
Section 5.13
|
Waiver of Past Defaults
|
46
|
Section 5.14
|
Waiver of Stay or Extension Laws
|
46
|
Section 5.15
|
Undertaking for Costs
|
47
|
ARTICLE SIX
THE TRUSTEES
|
47
|
Section 6.01
|
Notice of Defaults
|
47
|
Section 6.02
|
Certain Duties and Responsibilities of Trustees
|
47
|
Section 6.03
|
Certain Rights of Trustees
|
48
|
Section 6.04
|
Trustees Not Responsible for Recitals or Issuance of
Securities
|
50
|
Section 6.05
|
May Hold Securities
|
50
|
Section 6.06
|
Money Held in Trust
|
50
|
Section 6.07
|
Compensation and Reimbursement
|
50
|
Section 6.08
|
Corporate Trustees Required; Eligibility
|
51
|
Section 6.09
|
Resignation and Removal; Appointment of Successor
|
52
|
Section 6.10
|
Acceptance of Appointment by Successor
|
53
|
Section 6.11
|
Merger, Conversion, Consolidation or Succession to
Business
|
54
|
Section 6.12
|
Appointment of Authenticating Agent
|
55
|
Section 6.13
|
Joint Trustees
|
56
|
Section 6.14
|
Other Rights of Trustees
|
57
|
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY
|
58
|
Section 7.01
|
Company to Furnish Trustees Names and Addresses of
Holders
|
58
|
Section 7.02
|
Preservation of List of Names and Addresses of Holders
|
58
|
Section 7.03
|
Disclosure of Names and Addresses of Holders
|
58
|
Section 7.04
|
Reports by Trustees
|
58
|
Section 7.05
|
Reports by the Company
|
59
|
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
|
59
|
Section 8.01
|
Company May Consolidate, etc., only on Certain Terms
|
59
|
Section 8.02
|
Successor Person Substituted
|
60
|
ARTICLE NINE
SUPPLEMENTAL INDENTURES
|
61
|
Section 9.01
|
Supplemental Indentures Without Consent of Holders
|
61
|
Section 9.02
|
Supplemental Indentures with Consent of Holders
|
62
|
Section 9.03
|
Execution of Supplemental Indentures
|
63
|
Section 9.04
|
Effect of Supplemental Indentures
|
63
|
Section 9.05
|
Conformity with Trust Indenture Legislation
|
64
|
Section 9.06
|
Reference in Securities to Supplemental Indentures
|
64
|
Section 9.07
|
Notice of Supplemental Indentures
|
64
|
ARTICLE TEN
COVENANTS
|
64
|
Section 10.01
|
Payment of Principal, Premium and Interest
|
64
|
Section 10.02
|
Maintenance of Office or Agency
|
64
|
Section 10.03
|
Money for Securities Payments to Be Held in Trust
|
66
|
Section 10.04
|
Statement as to Compliance
|
67
|
Section 10.05
|
Payment of Taxes and Other Claims
|
67
|
Section 10.06
|
Corporate Existence
|
67
|
Section 10.07
|
Waiver of Certain Covenants
|
67
|
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
|
68
|
Section 11.01
|
Applicability of Article
|
68
|
Section 11.02
|
Election to Redeem; Notice to Trustees
|
68
|
Section 11.03
|
Selection by Trustees of Securities to Be Redeemed
|
68
|
Section 11.04
|
Notice of Redemption
|
68
|
Section 11.05
|
Deposit of Redemption Price
|
70
|
Section 11.06
|
Securities Payable on Redemption Date
|
70
|
Section 11.07
|
Securities Redeemed in Part
|
70
|
ARTICLE TWELVE
SINKING FUNDS
|
71
|
Section 12.01
|
Applicability of Article
|
71
|
Section 12.02
|
Satisfaction of Sinking Fund Payments with Securities
|
71
|
Section 12.03
|
Redemption of Securities for Sinking Fund
|
71
|
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
|
72
|
Section 13.01
|
Applicability of Article
|
72
|
Section 13.02
|
Repayment of Securities
|
72
|
Section 13.03
|
Exercise of Option
|
73
|
Section 13.04
|
When Securities Presented for Repayment Become Due and
Payable
|
73
|
Section 13.05
|
Securities Repaid in Part
|
74
|
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
|
74
|
Section 14.01
|
Company’s Option to Effect Defeasance or Covenant
Defeasance
|
74
|
Section 14.02
|
Defeasance and Discharge
|
74
|
Section 14.03
|
Covenant Defeasance
|
75
|
Section 14.04
|
Conditions to Defeasance or Covenant Defeasance
|
75
|
Section 14.05
|
Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions
|
77
|
Section 14.06
|
Reinstatement
|
78
|
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
|
78
|
Section 15.01
|
Purposes for Which Meetings May Be Called
|
78
|
Section 15.02
|
Call, Notice and Place of Meetings
|
78
|
Section 15.03
|
Persons Entitled to Vote at Meetings
|
78
|
Section 15.04
|
Quorum; Action
|
79
|
Section 15.05
|
Determination of Voting Rights; Conduct and Adjournment of
Meetings
|
80
|
Section 15.06
|
Counting Votes and Recording Action of Meetings
|
80
|
CROSS-REFERENCE TABLE
TIA Section
|
Indenture Section
|
310
|
(a)
|
6.08(1)
|
|
(b)
|
6.09
|
|
(c)
|
Not
Applicable
|
311
|
(a)
|
6.05
|
|
(b)
|
6.05
|
|
(c)
|
Not
Applicable
|
312
|
(a)
|
7.05
|
|
(b)
|
7.03
|
|
(c)
|
7.03
|
313
|
(a)
|
7.04
|
|
(b)
|
7.04
|
|
(c)
|
7.04
|
|
(d)
|
7.05
|
314
|
(a)
|
7.05
|
|
(a)(4)
|
10.04
|
|
(b)
|
Not
Applicable
|
|
(c)(1)
|
1.01
|
|
(c)(2)
|
1.01
|
|
(d)
|
Not
Applicable
|
|
(e)
|
1.01
|
|
(f)
|
Not
Applicable
|
315
|
(a)
|
6.02
|
|
(b)
|
6.01
|
|
(c)
|
6.02
|
|
(d)
|
6.02
|
|
(e)
|
5.15
|
316
|
(a)(last
sentence)
|
1.02
(“Outstanding”)
|
|
(a)(1)(A)
|
5.12
|
|
(a)(1)(B)
|
5.02,
5.13
|
|
(a)(2)
|
Not
Applicable
|
|
(b)
|
5.08
|
|
(c)
|
1.04(e)
|
317
|
(a)(1)
|
5.03
|
|
(a)(2)
|
5.04
|
|
(b)
|
10.03
|
318
|
(a)
|
1.16
|
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
INDENTURE, dated as
of ____________________, among
ELDORADO GOLD CORPORATION
,
a corporation duly continued and existing under
the laws of Canada
(herein called the “
Company
”), having its principal
office at
1188 – 550 Burrard
Street Bentall 5 Vancouver, British Columbia,
and
______________________, a ______________________, organized under
the laws of ______________________, as U.S. trustee (herein called
the “
U.S.
Trustee
”), and ______________________, a
______________________, organized under the laws of
______________________, as Canadian trustee (the
“
Canadian
Trustee
” and, together with the U.S. Trustee, the
“
Trustees
”).
RECITALS
The
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness (herein
called the “
Securities
”), which may be
convertible into or exchangeable for any securities of any Person
(including the Company), to be issued in one or more series as in
this Indenture provided.
This
Indenture is subject to the provisions of Trust Indenture
Legislation that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such
provisions.
All
things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
“
Act
,” when used with respect to
any Holder, has the meaning specified in
Section 1.04.
“
Affiliate
” of any specified Person
means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
“control” when used with respect to any specified
Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“
Authenticating Agent
” means any
Person authorized by the applicable Trustee pursuant to
Section 6.12 to act on behalf of such Trustee to authenticate
Securities.
“
Authorized Newspaper
” means a
newspaper, in the English language or in an official language of
the country of publication, customarily published on each Business
Day, and of general circulation in each place in connection with
which the term is used or in the financial community of each such
place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business
Day.
“
Base Currency
” has the meaning
specified in Section 1.14.
“
Bearer Security
” means any
Security except a Registered Security.
“
Board of Directors
” means the
board of directors of the Company or any duly authorized committee
thereof.
“
Board Resolution
” means a copy of
a resolution certified by the Corporate Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustees.
“
Business Day
,” when used with
respect to any Place of Payment or any other particular location
referred to in this Indenture or in the Securities, means, unless
otherwise specified with respect to any Securities pursuant to
Section 3.01, any day other than Saturday, Sunday or any other
day on which commercial banking institutions in that Place of
Payment or other location are permitted or required by any
applicable law, regulation or executive order to
close.
“
calculation period
” has the
meaning specified in Section 3.11.
“
Canadian Trustee
” means the Person
named as the “Canadian Trustee” in the first paragraph
of this Indenture until a successor Canadian Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Canadian Trustee” shall mean
or include each Person who is then a Canadian Trustee hereunder;
provided, however
, that if
at any time there is more than one such Person, “Canadian
Trustee” as used with respect to the Securities of any series
shall mean only the Canadian Trustee with respect to Securities of
that series.
“
Commission
” means the U.S.
Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
“
Common Depository
” has the meaning
specified in Section 3.04.
“
Company
” means the Person named as
the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor
Person.
“
Company Request
” or
“
Company Order
”
means a written request or order signed in the name of the Company
by an Officer and delivered to the Trustees.
“
Component Currency
” has the
meaning specified in Section 3.12(h).
“
Conversion Date
” has the meaning
specified in Section 3.12(d).
“
Conversion Event
” means the
cessation of use of (i) a Foreign Currency (other than the
Euro or other Currency unit) both by the government of the country
which issued such Currency and by a central bank or other public
institution of or within the international banking community for
the settlement of transactions, (ii) the Euro or
(iii) any currency unit (or composite currency) other than the
Euro for the purposes for which it was established.
“
Corporate Trust Office
” means
the principal corporate trust
office
of the U.S. Trustee or the Canadian Trustee, as
applicable, at which at any particular time its corporate trust
business may be administered, such an office on the date of
execution of this Indenture of the U.S. Trustee is located at
_________________________, Attention: _______________________, and
of the Canadian Trustee is located at ______________________,
Attention: ____________________________, except that with respect
to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of
the U.S. Trustee or the Canadian Trustee, as applicable, designated
in writing to the Company at which, at any particular time, its
corporate agency business shall be conducted.
“
coupon
” means any interest coupon
appertaining to a Bearer Security.
“
covenant defeasance
” has the
meaning specified in Section 14.03.
“
Currency
” means any currency or
currencies, composite currency or currency unit or currency units,
including, without limitation, the Euro, issued by the government
of one or more countries or by any recognized confederation or
association of such governments.
“
Default
” means any event which is,
or after notice or passage of time or both would be, an Event of
Default.
“
Defaulted Interest
” has the
meaning specified in Section 3.07.
“
defeasance
” has the meaning
specified in Section 14.02.
“
Depositary
” means, with respect to
the Securities of any series issuable or issued in the form of one
or more Registered Securities, the Person designated as Depositary
by the Company pursuant to Section 3.05 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than
one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with
respect to the Registered Securities of that series.
“
Dollar
” or “
$
” means a dollar or other
equivalent unit in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of
public and private debts.
“
Dollar Equivalent of the Currency
Unit
” has the meaning specified in
Section 3.12(g).
“
Dollar Equivalent of the Foreign
Currency
” has the meaning specified in
Section 3.12(f).
“
Election Date
” has the meaning
specified in Section 3.12(h).
“
Euro
” means the single currency of
the participating member states from time to time of the European
Union described in legislation of the European Counsel for the
operation of a single unified European currency (whether known as
the Euro or otherwise).
“
Event of Default
” has the meaning
specified in Section 5.01.
“
Exchange Act
” means the United
States Securities Exchange Act of 1934, as amended.
“
Exchange Date
” has the meaning
specified in Section 3.04.
“
Exchange Rate Agent
” means, with
respect to Securities of or within any series, unless otherwise
specified with respect to any Securities pursuant to
Section 3.01, a New York clearing house bank, designated
pursuant to Section 3.01 or Section 3.13.
“
Exchange Rate Officer’s
Certificate
” means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar or Foreign Currency amounts of principal,
premium (if any) and interest (if any) (on an aggregate basis and
on the basis of a Security having the lowest denomination principal
amount determined in accordance with Section 3.02 in the
relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, sent (in the case
of a telex) or signed (in the case of a certificate) by the Chief
Executive Officer, President or Chief Financial Officer of the
Company.
“
Extension Notice
” has the meaning
specified in Section 3.08.
“
Extension Period
” has the meaning
specified in Section 3.08.
“
Final Maturity
” has the meaning
specified in Section 3.08.
“
First Currency
” has the meaning
specified in Section 1.15.
“
Foreign Currency
” means any
Currency other than Currency of the United States.
“
GAAP
” means generally accepted
accounting principles in Canada in effect from time to time, unless
the Person’s most recent audited or quarterly financial
statements are not prepared in accordance with generally accepted
accounting principles in Canada, in which case “GAAP”
shall mean generally accepted accounting principles in the United
States in effect from time to time.
“
Government Obligations
” means,
unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, securities which are (i) direct
obligations of the government which issued the Currency in which
the Securities of a particular series are payable or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the government which
issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit
obligations of such government payable in such Currency and are not
callable or redeemable at the option of the issuer thereof and
shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation
or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the
holder of a depository receipt;
provided
that (except as required by
law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the
Government Obligation evidenced by such depository
receipt.
“
Holder
” means, in the case of a
Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
“
Indenture
” means this instrument
as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities
established as contemplated by Section 3.01;
provided, however,
that, if at any time
more than one Person is acting as Trustee under this instrument,
“Indenture” shall mean, with respect to any one or more
series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the particular series of Securities
for which such Person is Trustee established as contemplated by
Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
“
Indexed Security
” means a Security
the terms of which provide that the principal amount thereof
payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
“
interest
,” when used with respect
to an Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity
at the rate prescribed in such Original Issue Discount
Security.
“
Interest Payment Date
,” when used
with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
“
Judgment Currency
” has the meaning
specified in Section 1.14.
“
Lien
” means any mortgage, pledge,
hypothecation, charge, assignment, deposit arrangement,
encumbrance, security interest, lien (statutory or other), or
preference, priority or other security or similar agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any agreement to give or grant a
Lien or any lease, conditional sale or other title retention
agreement having substantially the same economic effect as any of
the foregoing).
“
mandatory sinking fund payment
”
has the meaning specified in Section 12.01.
“
Market Exchange Rate
” means,
unless otherwise specified with respect to any Securities pursuant
to Section 3.01, (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant Currency unit
and Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 3.01 for the Securities of the
relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for
such Foreign Currency for cable transfers quoted in New York City
as certified for customs purposes by the Federal Reserve Bank of
New York and (iii) for any conversion of one Foreign Currency
into Dollars or another Foreign Currency, the spot rate at noon
local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks
located in New York City, Toronto, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified
with respect to any Securities pursuant to Section 3.01, in
the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations
from one or more major banks in New York City, Toronto, London or
another principal market for the Currency in question, or such
other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any Currency by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such
securities.
“
Maturity
,” when used with respect
to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option
to elect repayment or otherwise.
“
Notice of
Default
” has the meaning
specified in Section 6.01.
“
Officer
” means the Chair of the
Board of Directors, the Chief Executive Officer, the President, the
Chief Financial Officer, the Chief Operating Officer, any Executive
Vice President, any Vice President, the Treasurer or the Corporate
Secretary of the Company or, in the event that the Company is a
partnership or a limited liability company that has no such
officers, a person duly authorized under applicable law by the
general partner, managers, members or a similar body to act on
behalf of the Company.
“
Officer’s Certificate
” means
a certificate, which shall comply with this Indenture, signed by an
Officer and delivered to the Trustees.
“
Opinion of Counsel
” means a
written opinion of counsel, who may be counsel for the Company,
including an employee of the Company, who shall be acceptable to
the Trustees, which opinion may contain customary exceptions and
qualifications as to the matters set forth therein.
“
Optional Reset Date
” has the
meaning specified in Section 3.07.
“
optional sinking fund payment
” has
the meaning specified in Section 12.01.
“
Original Issue Discount Security
”
means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to
Section 5.02.
“
Original Stated Maturity
” has the
meaning specified in Section 3.08.
“
Outstanding
,” when used with
respect to Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under this
Indenture, except:
(i)
Securities
theretofore cancelled by either Trustee or delivered to either
Trustee for cancellation;
(ii)
Securities, or
portions thereof, for whose payment or redemption or repayment at
the option of the Holder, money in the necessary amount has been
theretofore deposited with either Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any coupons
appertaining thereto;
provided
that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustees has been made;
(iii)
Securities, except
to the extent provided in Section 14.02 and Section 14.03,
with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
and
(iv)
Securities which
have been paid pursuant to Section 3.06 or in exchange for or
in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to
the Trustees proof satisfactory to them that such Securities are
held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however
, that in determining whether the Holders
of the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of
an Original Issue Discount Security that may be counted in making
such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.02, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate
Officer’s Certificate delivered to the Trustees, of the
principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 3.01, and
(iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustees shall be protected
in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustees know to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustees the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
“
Paying Agent
” means any Person
(including the Company acting as Paying Agent) authorized by the
Company to pay the principal of, premium (if any) or interest (if
any) on any Securities on behalf of the Company. Such Person must
be capable of making payment in the Currency of the issued
Security.
“
Person
” means any individual,
corporation, body corporate, partnership, limited partnership,
limited liability partnership, joint venture, limited liability
company, unlimited liability company, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“
Place of Payment
” means, when used
with respect to the Securities of or within any series, each place
where the principal of, premium (if any) and interest (if any) on
such Securities are payable as specified as contemplated by
Sections 3.01 and 10.02.
“
Predecessor Security
” of any
particular Security means every previous Security evidencing all or
a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to
which the mutilated, destroyed, lost or stolen coupon appertains,
as the case may be.
“
Privacy Laws
” has the meaning
specified in Section 6.14.
“
rate(s) of exchange
” has the
meaning specified in Section 1.14.
“
Redemption Date
,” when used with
respect to any Security to be redeemed, in whole or in part, means
the date fixed for such redemption by or pursuant to this
Indenture.
“
Redemption Price
,” when used with
respect to any Security to be redeemed, in whole or in part, means
the price at which it is to be redeemed pursuant to this Indenture,
plus accrued and unpaid interest thereon to the Redemption
Date.
“
Registered Security
” means any
Security registered in the Security Register.
“
Regular Record Date
” for the
interest payable on any Interest Payment Date on the Registered
Securities of or within any series means the date specified for
that purpose as contemplated by Section 3.01.
“
Repayment Date
” means, when used
with respect to any Security to be repaid at the option of the
Holder, the date fixed for such repayment pursuant to this
Indenture.
“
Reset Notice
” has the meaning
specified in Section 3.07.
“
Responsible Officer
,” when used
with respect to a Trustee, means any vice president, secretary, any
assistant secretary, treasurer, any assistant treasurer, any senior
trust officer, any trust officer, the controller within the
corporate trust administration division of a Trustee or any other
officer of a Trustee customarily performing functions similar to
those performed by any of the above-designated officers, and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular
subject.
“
Securities
” has the meaning stated
in the first recital of this Indenture and more particularly means
any Securities authenticated and delivered under this Indenture;
provided, however,
that if
at any time there is more than one Person acting as Trustee under
this Indenture, “Securities” with respect to the
Indenture as to which such Person is Trustee shall have the meaning
stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
“
Security Register
” and
“
Security
Registrar
” have the respective meanings specified in
Section 3.05.
“
Special Record Date
” for the
payment of any Defaulted Interest on the Registered Securities of
or within any series means a date fixed by the Trustees pursuant to
Section 3.07.
“
Specified Amount
” has the meaning
specified in Section 3.12(h).
“
Stated Maturity
,” when used with
respect to any Security or any installment of principal thereof or
interest thereon, means the date specified in such Security or a
coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 3.08 (if
applicable).
“
Subsequent Interest Period
” has
the meaning specified in Section 3.07.
“
Trust Indenture Act
” or
“
TIA
” means the
United States Trust Indenture Act of 1939, as amended, as in force
at the date as of which this Indenture was executed, except as
provided in Section 9.05.
“
Trust Indenture Legislation
”
means, at any time, the provisions of (i) any applicable statute of
Canada or any province
or
territory
thereof and the regulations thereunder as amended
or re-enacted from time to time, but only to the extent applicable,
or (iii) the Trust Indenture Act and regulations thereunder,
in each case, relating to trust indentures and to the rights,
duties and obligations of trustees under trust indentures and of
corporations issuing debt obligations under trust indentures, to
the extent that such provisions are at such time in force and
applicable to this Indenture or the Company or the
Trustees.
“
Trustee
” or “
Trustees
” means the U.S. Trustee
and the Canadian Trustee. If a Canadian Trustee is not appointed
under this Indenture, or resigns or is removed and, pursuant to
Section 6.09, the Company is not required to appoint a
successor Trustee to the Canadian Trustee, “Trustee,”
“Trustees” and any reference to “either
Trustee,” “both of the Trustees” or such similar
references shall mean the Person named as the U.S. Trustee or any
successor thereto appointed pursuant to the applicable provisions
of this Indenture. Except to the extent otherwise indicated,
“Trustees” shall refer to the Canadian Trustee (if
appointed and still serving) and the U.S. Trustee, both jointly and
individually.
“
U.S. Federal Bankruptcy Code
”
means the Bankruptcy Act of Title 11 of the United States
Code, as amended from time to time.
“
U.S. Trustee
” means the Person
named as the “U.S. Trustee” in the first paragraph of
this Indenture until a successor U.S. Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter “U.S. Trustee” shall mean or include each
Person who is then a U.S. Trustee hereunder;
provided, however,
that if at any time
there is more than one such Person, “U.S. Trustee” as
used with respect to the Securities of any series shall mean only
the U.S. Trustee with respect to Securities of that
series.
“
United States
” means, unless
otherwise specified with respect to any Securities pursuant to
Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its
possessions and other areas subject to its
jurisdiction.
“
United States person
” means,
unless otherwise specified with respect to any Securities pursuant
to Section 3.01, an individual who is a citizen or resident of
the United States, a corporation, partnership (including any entity
treated as a corporation or as a partnership for United States
federal income tax purposes) or other entity created or organized
in or under the laws of the United States, any state thereof or the
District of Columbia, an estate the income of which is subject to
United States federal income taxation regardless of its source, or
a trust if (A) it is subject to the primary supervision of a
court within the United States and one or more United States
persons have the authority to control all substantial decisions of
the trust or (B) it has a valid election in effect under
applicable United States Treasury Regulations to be treated as a
United States person.
“
Valuation Date
” has the meaning
specified in Section 3.12(c).
“
Writing
” has the meaning specified
in Section 6.13.
“
Yield to Maturity
” means the yield
to maturity, computed at the time of issuance of a Security (or, if
applicable, at the most recent redetermination of interest on such
Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation
principles.
For all
purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1)
the terms defined
in this Indenture have the meanings assigned to them hereinand
include the plural as well as the singular;
(2)
all terms used
herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to
them therein, and the terms “cash transaction” and
“self-liquidating paper,” as used in TIA
Section 319, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture
Act;
(3)
the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(4)
“or” is
not exclusive;
(5)
words implying any
gender shall apply to all genders;
(6)
the words
Subsection, Section and Article refer to the Subsections, Sections
and Articles, respectively, of this Indenture unless otherwise
noted; and
(7)
“include,”
“includes” or “including” means include,
includes or including, in each case, without
limitation.
Compliance
Certificates and Opinions.
Upon
any application or request by the Company to the Trustees to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustees an Officer’s Certificate stating that
all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every
certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to
Section 10.04) shall include:
(1)
a statement that
each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating
thereto;
(2)
a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based;
(3)
a statement that,
in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4)
a statement as to
whether, in the opinion of each such individual, such covenant or
condition has been complied with.
Form
of Documents Delivered to Trustees.
In any
case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such
Persons may certify or give an opinion with respect to other
matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel,
a certificate of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such
matters are erroneous.
Any
certificate or opinion of an officer of the Company or counsel may
be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant or
firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which
such certificate or opinion may be based are erroneous. Any
certificate or opinion of any independent firm of public
accountants filed with the Trustees shall contain a statement that
such firm is independent.
Where
any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
(a) Any
request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and
any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustees and,
where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the “
Act
” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any
such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in
favor of the Trustees and the Company, if made in the manner
provided in this Section 1.05. The record of any meeting of Holders
of Securities shall be proved in the manner provided in
Section 15.06.
(b) The
fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustees
deem sufficient.
(c) The
principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) The
principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed
by the Trustees to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustees to be satisfactory. The
Trustees and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (2) such Bearer Security is produced
to the Trustees by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The
principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may also be proved in
any other manner that the Trustees deem sufficient.
(e) If
the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding
Trust Indenture Legislation, including TIA Section 316(c), such
record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be
computed as of such record date;
provided
that no such authorization,
agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the
record date.
(f) Any
request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustees or the Company in reliance thereon,
whether or not notation of such action is made upon such
Security.
Notices,
Etc. to Trustees and Company.
Any
request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed
with:
(1)
the U.S. Trustee,
by the Canadian Trustee, any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the U.S. Trustee at its Corporate Trust
Office, Attention: ________________, or
(2)
the Canadian
Trustee, by the U.S. Trustee, any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Canadian Trustee at its Corporate
Trust Office, Attention: ________________, or
(3)
the Company by
either Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, or sent by
overnight courier, to the Company at
6420 Abrams, Ville Saint Laurent, Quebec H4S 1Y2,
Canada,
Attention: Corporate Secretary or such other address
and/or officer as the Company may designate on written notice to
the Trustees.
Notice
to Holders; Waiver.
Where
this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustees, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any
notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
In
case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be
impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice
as shall be satisfactory to the Trustees shall be deemed to be
sufficient giving of such notice for every purpose
hereunder.
Except
as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this
Indenture provides for notice to Holders of Bearer Securities of
any event, such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The
City of New York and in such other city or cities as may be
specified in such Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date,
and not later than the latest date, prescribed for the giving of
such notice. Any such notice shall be deemed to have been given on
the date of the first such publication.
In
case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to
Holders of Bearer Securities as shall be satisfactory to the
Trustees shall be deemed to be sufficient giving of such notice for
every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency
of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any
request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an
official language of the country of publication.
Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustees, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
All
covenants and agreements in this Indenture by the Company and the
Trustees shall bind their successors and assigns, whether so
expressed or not.
In case
any provision in this Indenture or in any Security or coupon shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Nothing
in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto,
any Authenticating Agent, any Paying Agent, any Securities
Registrar and their successors hereunder and the Holders of
Securities or coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Subject to Section 1.16, at all times in relation
to this Indenture and any action to be taken hereunder, the Company
and the Trustees each shall observe and comply with Trust Indenture
Legislation and the Company, the Trustees and each Holder of a
Security shall be entitled to the benefits of Trust Indenture
Legislation.
This
Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but
without giving effect to applicable principles of conflicts of law
to the extent that the application of the law of another
jurisdiction would be required thereby. Each Trustee and the
Company agrees to comply with all provisions of Trust Indenture
Legislation applicable to or binding upon it in connection with
this Indenture and any action to be taken hereunder. This Indenture
is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. Notwithstanding the
preceding sentence, the exercise, performance or discharge by the
Canadian Trustee of any of its rights, powers, duties or
responsibilities hereunder shall be construed in accordance with
the laws of the Province of [Ontario] and the federal laws of
Canada applicable thereto.
In any
case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment or other location
contemplated hereunder, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a
provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section 1.13),
payment of principal, premium (if any) or interest (if any), need
not be made at such Place of Payment or other location contemplated
hereunder on such date, but may be made on the next succeeding
Business Day at such Place of Payment or other location
contemplated hereunder with the same force and effect as if made on
the Interest Payment Date or Redemption Date or sinking fund
payment date, or at the Stated Maturity or Maturity;
provided
that no interest shall accrue
for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
Agent
for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the
execution and delivery of this Indenture, the Company
(i) acknowledges that it has irrevocably designated and
appointed _____________________ as its authorized agent upon which
process may be served in any suit, action or proceeding arising out
of or relating to the Securities or this Indenture that may be
instituted in any United States federal or New York state court
located in The Borough of Manhattan, The City of New York, or
brought by the Trustees (whether in their individual capacity or in
their capacity as Trustees hereunder), (ii) irrevocably
submits to the non-exclusive jurisdiction of any such court in any
such suit or proceeding, and (iii) agrees that service of
process upon _____________________ and written notice of said
service to the Company (mailed or delivered to the Company at
6420 Abrams, Ville Saint Laurent,
Quebec H4S 1Y2, Canada,
Attention: Corporate Secretary or
such other address and/or officer as the Company may designate on
written notice to the Trustees), shall be deemed in every respect
effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation
and appointment of _____________________ in full force and effect
so long as this Indenture shall be in full force and
effect.
To the
extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself
or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Indenture and the
Securities, to the extent permitted by law.
The
Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any such action, suit or proceeding
in any such court or any appellate court with respect thereto. The
Company irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of any such
action, suit or proceeding in any such court.
Conversion
of Judgment Currency.
(a) The
Company covenants and agrees that the following provisions shall
apply to conversion of Currency in the case of the Securities and
this Indenture, to the fullest extent permitted by applicable
law:
(i) If
for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to
convert into a Currency (the “
Judgment Currency
”) an amount due
or contingently due in any other Currency under the Securities of
any series and this Indenture (the “
Base Currency
”), then the
conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which the final judgment is given or
the order of enforcement is made, as the case may be (unless a
court shall otherwise determine).
(ii) If
there is a change in the rate of exchange prevailing between the
Business Day before the day on which the judgment referred to in
(i) above is given or an order of enforcement is made, as the
case may be (or such other date as a court shall determine), and
the date of receipt of the amount due, the Company shall pay such
additional (or, as the case may be, such lesser) amount, if any, as
may be necessary so that the amount paid in the Judgment Currency
when converted at the rate of exchange prevailing on the date of
receipt will produce the amount in the Base Currency originally
due.
(b) In
the event of the winding-up of the Company at any time while any
amount or damages owing under the Securities and this Indenture, or
any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders and
the Trustees harmless against any deficiency arising or resulting
from any variation in rates of exchange between (1) the date
as of which the equivalent of the amount in the Base Currency due
or contingently due under the Securities and this Indenture (other
than under this Subsection (b)) is calculated for the purposes
of such winding-up and (2) the final date for the filing of
proofs of claim in such winding-up. For the purpose of this
Subsection (b) the final date for the filing of proofs of
claim in the winding-up of the Company shall be the date fixed by
the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date
as at which liabilities of the Company may be ascertained for such
winding-up prior to payment by the liquidator or otherwise in
respect thereto.
(c) The
obligations contained in Subsections (a)(ii) and (b) of this
Section 1.15 shall constitute separate and independent obligations
of the Company from its other obligations under the Securities and
this Indenture, shall give rise to separate and independent causes
of action against the Company, shall apply irrespective of any
waiver or extension granted by any Holder or the Trustees from time
to time and shall continue in full force and effect notwithstanding
any judgment or order or the filing of any proof of claim in the
winding up of the Company for a liquidated sum in respect of
amounts due hereunder (other than under Subsection (b) above)
or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustees, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or its
liquidator. In the case of Subsection (b) above, the amount of
such deficiency shall not be deemed to be increased or reduced by
any variation in rates of exchange occurring between the said final
date and the date of any liquidating distribution.
The
term “
rate(s) of
exchange
” shall mean the rate of exchange quoted by a
Canadian chartered bank as may be designated in writing by the
Company to the Trustees from time to time, at its central foreign
exchange desk in its main office in Toronto at 12:00 noon (Toronto
time) on the relevant date for purchases of the Base Currency with
the Judgment Currency and includes any premiums and costs of
exchange payable. The Trustees shall have no duty or liability with
respect to monitoring or enforcing this Section 1.15.
Except
as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities,
in the event that any amount is stated herein in the Currency of
one nation (the “
First
Currency
”), as of any date such amount shall also be
deemed to represent the amount in the Currency of any other
relevant nation which is required to purchase such amount in the
First Currency at the Bank of Canada noon rate as reported by
Telerate on screen 3194 (or such other means of reporting the
Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) on the date of
determination.
Conflict
with Trust Indenture Legislation.
If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with any mandatory requirement of Trust
Indenture Legislation, such mandatory requirement shall control. If
and to the extent that any provision hereof modifies or excludes
any provision of Trust Indenture Legislation that may be so
modified or excluded, the latter provision shall be deemed to apply
hereof as so modified or to be excluded, as the case may
be.
Incorporators,
Shareholders, Officers and Directors of the Company Exempt from
Individual Liability.
No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future
shareholder, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and
as part of the consideration for the issue of the
Securities.
Each of
the Company and the Trustees hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to
this Indenture, the Securities or the transactions contemplated
hereby.
This
Indenture may be executed in any number of counterparts (either by
facsimile or by original manual signature), each of which so
executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Indenture.
Except
for the payment obligations of the Company contained herein,
neither the Company nor the Trustees shall be liable to each other,
or held in breach of this Indenture, if prevented, hindered, or
delayed in the performance or observance of any provision contained
herein by reason of act of God, riots, terrorism, acts of war,
epidemics, governmental action or judicial order, earthquakes, or
any other similar causes (including, but not limited to,
mechanical, electronic or communication interruptions, disruptions
or failures). Performance times under this Indenture shall be
extended for a period of time equivalent to the time lost because
of any delay that is excusable under this Section
1.21.
ARTICLE TWO
The
Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any,
shall be in substantially the forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined
by the Officer executing such Securities or coupons, as evidenced
by the execution of such Securities or coupons by such Officer. If
the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Secretary of the Company and
delivered to the Trustees at or prior to the delivery of the
Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities or coupons. Any
portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security.
Unless
otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached.
Either
Trustee’s certificate of authentication shall be in
substantially the form set forth in this Article Two.
Form
of Trustee’s Certificate of Authentication.
Subject
to Section 6.12, either Trustee’s certificate of
authentication shall be in substantially the following
form:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
(Certificate
of Authentication may be executed by either Trustee)
Dated:
____________
_______________________,
as U.S. Trustee, certifies that this is one of the Securities of
the series designated therein referred to in the within-mentioned
Indenture.
|
__________________________,
as U.S.
Trustee
|
|
|
|
By:
Authorized
Officer
|
Dated:
____________
____________________,
as Canadian Trustee, certifies that this is one of the Securities
of the series designated therein referred to in the
within-mentioned Indenture.
|
__________________________,
as
Canadian
Trustee
|
|
|
|
By:
Authorized
Officer
|
Securities
Issuable in Global Form.
If
Securities of or within a series are issuable in global form, as
specified and contemplated by Section 3.01, then any such
Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such
series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect
exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the
Trustees in such manner and upon instructions given by the Holder
or its nominee as shall be specified therein or in the Company
Order to be delivered to the Trustees pursuant to Section 3.03 or
3.04. Subject to the provisions of Sections 3.03 and 3.04 (if
applicable), the Trustees shall deliver and redeliver any Security
in global form in the manner and upon instructions given by the
Holder or its nominee as shall be specified therein or in the
applicable Company Order. If a Company Order pursuant to
Section 3.03 or Section 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.03 and
need not be accompanied by an Opinion of Counsel.
Notwithstanding the
provisions of Section 3.07, unless otherwise specified as
contemplated by Section 3.01, payment of principal of, premium
(if any) and interest (if any) on any Security in permanent global
form shall be made to the Holder or its nominee specified
therein.
Notwithstanding
Section 3.09 and except as provided in the preceding
paragraph, the Company, the Trustees and any agent of the Company
and the Trustees shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global
Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in
registered form, or (ii) in the case of a permanent global
Security in bearer form, the Depositary.
ARTICLE THREE
The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series and may be
denominated and payable in Dollars or any Foreign Currency. There
shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and set forth
in, or determined in the manner provided in, an Officer’s
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable:
(1)
the title of the
Securities of the series (which shall distinguish the Securities of
such series from the Securities of all other series);
(2)
the aggregate
principal amount of the Securities of the series and any limit upon
the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer
(including any restriction or
condition on the transferability of the Securities of such
series)
of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06,
9.06, 11.07 or 13.05) and, in the event that no limit upon the
aggregate principal amount of the Securities of that series is
specified, the Company shall have the right, subject to any terms,
conditions or other provisions specified pursuant to this Section
3.01 with respect to the Securities of such series, to re-open such
series for the issuance of additional Securities of such series
from time to time;
(3)
the extent and
manner, if any, to which payment on or in respect of the Securities
of the series will be senior or will be subordinated to the prior
payment of other liabilities and obligations of the Company, and
whether the payment of principal, premium (if any) and interest (if
any) will be guaranteed by any other Person;
(4)
the percentage or
percentages of principal amount at which the Securities of the
series will be issued;
(5)
the date or dates,
or the method by which such date or dates will be determined or
extended, on which the Securities of the series may be issued and
the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of and premium
(if any) on the Securities of the series is payable;
(6)
the rate or rates
at which the Securities of the series shall bear interest, whether
fixed or variable (if any), or the method by which such rate or
rates shall be determined,
whether
such interest shall be payable in cash or additional Securities of
the same series or shall accrue and increase the aggregate
principal amountoutstanding of such series,
the date or
dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates
on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date or
dates shall be determined, and the basis upon which interest shall
be calculated if other than on the basis of a 360-day year of
twelve 30-day months;
(7)
the place or
places, if any, other than or in addition to the Borough of
Manhattan, The City of New York, where the principal of, premium
(if any) and interest (if any) on Securities of the series shall be
payable, where any Registered Securities of the series may be
surrendered for registration of transfer, where Securities of the
series may be surrendered for exchange, where Securities of the
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and, if different than the
location specified in Section 1.06, the place or places where
notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be
served;
(8)
the period or
periods within which, the date or dates on which, the price or
prices at which, the Currency in which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is
to have that option;
(9)
the obligation, if
any, of the Company to redeem, repay or purchase Securities of the
series pursuant to any sinking fund, amortization or analogous
provisions or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10)
if other than
denominations of $1,000 and any integral multiple thereof, the
denomination or denominations in which any Registered Securities of
the series shall be issuable and, if other than denominations of
$5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable;
(11)
the identity of
each Security Registrar and/or Paying Agent;
(12)
if other than the
principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.02
or the method by which such portion shall be
determined;
(13)
if other than
Dollars, the Foreign Currency in which payment of the principal of,
premium (if any) or interest (if any) on the Securities of the
series shall be payable or in which the Securities of the series
shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 3.12;
(14)
whether the amount
of payments of principal of, premium (if any) or interest (if any)
on the Securities of the series may be determined with reference to
an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
(15)
whether the
principal of, premium (if any) or interest (if any) on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which
such Securities are denominated or stated to be payable, the period
or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the
time and manner of determining the exchange rate between the
Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu
of any of the provisions of Section 3.12;
(16)
the designation of
the initial Exchange Rate Agent, if any;
(17)
the applicability,
if any, of Sections 14.02 and/or 14.03 to the Securities of
the series and any provisions in modification of, in addition to or
in lieu of any of the provisions of Article Fourteen that
shall be applicable to the Securities of the series;
(18)
provisions, if any,
granting special rights to the Holders of Securities of the series
upon the occurrence of such events as may be
specified;
(19)
any deletions from,
modifications of or additions to the Events of Default or covenants
(including any deletions from, modifications of or additions to
Section 10.09) of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth
herein;
(20)
whether Securities
of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Securities of the
series, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of
the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests
in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 3.05, whether Registered Securities of the series may
be exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of such series,
and the circumstances under which and the place or places where any
such exchanges may be made and, if Securities of the series are to
be issuable in global form, the designation of any Depositary
therefor;
(21)
the date as of
which any Bearer Securities of the series and any temporary global
Security of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(22)
the Person to whom
any interest on any Registered Security of the series shall be
payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner
provided in Section 3.04;
(23)
if Securities of
the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
(24)
if the Securities
of the series are to be issued upon the exercise of warrants or
subscription receipts, the time, manner and place for such
Securities to be authenticated and delivered;
(25)
if the Securities
of the series are to be convertible into or exchangeable for any
securities or property of any Person (including the Company), the
terms and conditions upon which such Securities will be so
convertible or exchangeable, and any additions or changes to permit
or facilitate such conversion or exchange;
(26)
provisions as to
modification, amendment or variation of any rights or terms
attaching to the Securities;
(27)
whether the
Securities will be secured or unsecured and the nature and priority
of any security; and
(28)
any other terms,
conditions, rights and preferences (or limitations on such rights
and preferences) relating to the series (which terms shall not be
inconsistent with the requirements of Trust Indenture Legislation
or the provisions of this Indenture).
All
Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination
and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to Section 3.03) and set forth in
such Officer’s Certificate or in any such indenture
supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of such
series.
If any
of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustees at or prior to the delivery of the
Officer’s Certificate setting forth the terms of the
series.
The
Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 3.01. With
respect to Securities of any series denominated in Dollars, in the
absence of any such provisions, the Registered Securities of such
series, other than Registered Securities issued in global form
(which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities
issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000
and any integral multiples
thereof
.
Execution,
Authentication, Delivery and Dating.
The
Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by an Officer. The signature of an Officer
on the Securities or coupons may be the manual or facsimile
signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the
Securities.
Securities or
coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the
date of such Securities or coupons.
At any
time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series
together with any coupons appertaining thereto, executed by the
Company to the applicable Trustee for authentication, together with
a Company Order for the authentication and delivery of such
Securities, and the applicable Trustee in accordance with such
Company Order shall authenticate and deliver such Securities;
provided, however
, that, in
connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States;
provided further
that,
unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered
in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a
certificate in the form set forth in Exhibit A-1 to this
Indenture, dated no earlier than 15 days prior to the earlier
of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary
Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this
Section 3.03 and Section 3.04, the notation of a beneficial
owner’s interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner’s interest in such
permanent global Security. Except as permitted by Section 3.06, the
Trustees shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been
detached and cancelled. If not all the Securities of any series are
to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the
Trustees for the issuance of such Securities and determining terms
of particular Securities of such series such as interest rate,
Stated Maturity, date of issuance and date from which interest
shall accrue.
In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustees shall be entitled to receive, and (subject
to Trust Indenture Legislation, including TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that
the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this
Indenture;
(b) that
the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture;
(c) that
such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered
by the Company to the applicable Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
applicable Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms;
(d) the
execution and delivery by the Company of such Securities, any
coupons and any supplemental indenture will not contravene the
articles of incorporation or continuance, or such other constating
documents then in effect, if any, or the by-laws of the Company, or
violate applicable laws; and
(e) that
the Company has the corporate power to issue such Securities and
any coupons, and has duly taken all necessary corporate action with
respect to such issuance.
Notwithstanding the
provisions of Section 3.01 and of the preceding two
paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the
Officer’s Certificate otherwise required pursuant to
Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior
to or at the time of issuance of each Security, but such documents
shall be delivered prior to or at the time of issuance of the first
Security of such series.
The
Trustees shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustees’ own rights, duties or
immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the
Trustees.
Each
Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 3.01.
No
Security or coupon shall entitle a Holder to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the
applicable Trustee by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver
such Security to the Trustees for cancellation as provided in
Section 3.10 together with a written statement (which need not
comply with Section 1.03 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never entitle a Holder to the
benefits of this Indenture.
Pending
the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the applicable Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the Officer
executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Such temporary Securities
may be in global form.
Except
in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the applicable Trustee shall authenticate
and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor and evidencing the same
indebtedness;
provided,
however
, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security;
provided further
that a
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
If
temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided
therein, be delivered to the office of the Depositary for credit to
the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without
unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such
temporary global Security (the “
Exchange Date
”), the Company shall
deliver to the Trustees definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security and of like tenor and evidencing the same
indebtedness, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the
Depositary to the Trustees, as the Company’s agent for such
purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the applicable Trustee
shall authenticate and deliver, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized
denominations and of like tenor and evidencing the same
indebtedness as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange
for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 3.01, and, if any combination thereof
is so specified, as requested by the beneficial owner thereof;
provided, however
, that,
unless otherwise specified in such temporary global Security, upon
such presentation by the Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by the Depositary as to the portion of
such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent
date, each in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to
Section 3.01);
provided
further
that definitive Bearer Securities shall be delivered
in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 3.03.
Unless
otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the
same series and of like tenor and evidencing the same indebtedness
following the Exchange Date when the account holder instructs the
Depositary to request such exchange on his behalf and delivers to
the Depositary a certificate in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.01), dated no earlier than
15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of the Depositary,
the Trustees, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in
such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and the like in
the event that such Person does not take delivery of such
definitive Securities in person at the offices of the Depositary.
Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered
only outside the United States and Canada.
Until
exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and of like tenor and evidencing the same indebtedness
authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest
payable on a temporary global Security on an Interest Payment Date
for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to the Depositary on such Interest
Payment Date upon delivery by the Depositary to the Trustees of a
certificate or certificates in the form set forth in
Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 3.01), for credit without
further interest thereon on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment
Date and who have each delivered to the Depositary a certificate
dated no earlier than 15 days prior to the Interest Payment
Date occurring prior to such Exchange Date in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made
pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 3.04
and of the third paragraph of Section 3.03 and the interests
of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and
of like tenor and evidencing the same indebtedness on the Exchange
Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments
of principal of, premium (if any) or interest (if any) owing with
respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by the Depositary and
not paid as herein provided shall be returned to the Trustees
immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in
accordance with Section 10.03.
Registration,
Registration of Transfer and Exchange.
So long as required by Trust Indenture
Legislation, the Company shall cause to be kept at the Corporate
Trust Offices of the Trustees a register for each series of
Securities (the registers maintained in the Corporate Trust Offices
of the Trustees and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to
as the “
Security
Register
”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Holders of
Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open
to inspection by the Trustees.
The Trustees are hereby initially appointed as
security registrar (the “Security Registrar”) for the
purpose of registering Registered Securities and transfers of
Registered Securities as herein provided. The Company shall have
the right to remove and replace from time to time the Security
Registrar for any series of Securities; provided, however, that, no
such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Registered
Securities shall have been appointed by the Company and shall have
accepted such appointment by the Company. In the event that the
Trustees shall not be or shall cease to be the Securities Registrar
with respect to a series of Securities, they shall have the right
to examine the Security Register for such series at all reasonable
times. There shall be only one Securities Register for such series
of Securities
.
Upon
surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for
that series, the Company shall execute, and the applicable Trustee
shall authenticate and deliver, in the name of the designated
transferee, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate
principal amount and tenor and evidencing the same
indebtedness.
For
Canadian Securities, the Security must be duly endorsed for
transfer or in a duly endorsed transferable form as applicable and
must comply with the current industry practice in accordance with
the Securities Transfer Association of Canada.
At the
option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal
amount and tenor and evidencing the same indebtedness, upon
surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the
applicable Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 3.01, Bearer Securities
may not be issued in exchange for Registered
Securities.
If (but
only if) expressly permitted in or pursuant to the applicable Board
Resolution and (subject to Section 3.03) set forth in the
applicable Officer’s Certificate, or in any indenture
supplemental hereto, delivered as contemplated by
Section 3.01, at the option of the Holder, Bearer Securities
of any series may be exchanged for Registered Securities of the
same series of any authorized denomination and of a like aggregate
principal amount and tenor and evidencing the same indebtedness,
upon surrender of the Bearer Securities to be exchanged at the
office of the applicable Trustee, with all unmatured coupons and
all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustees if there is furnished to them such
security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such
payment;
provided, however
,
that, except as otherwise provided in Section 10.02, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency
in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may
be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any
Securities are so surrendered for exchange, the Company shall
execute, and the applicable Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the
foregoing, except as otherwise specified as contemplated by
Section 3.01, any permanent global Security shall be
exchangeable only as provided in this Section. If any beneficial
owner of an interest in a permanent global Security is entitled to
exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and
denomination, as contemplated by Section 3.01 and provided
that any applicable notice provided in the permanent global
Security shall have been given to the Company, the Trustees and the
Depositary, then without unnecessary delay but in any event not
later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the applicable Trustee
definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner’s interest in such
permanent global Security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary or
such other depositary as shall be specified in the Company Order
with respect thereto to the applicable Trustee, as the
Company’s agent for such purpose, to be exchanged in whole or
from time to time in part, for definitive Securities without
charge, and the applicable Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the
portion of such permanent global Security to be exchanged which,
unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as
contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof. No Bearer
Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in
the United States or Canada. If a Registered Security is issued in
exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
Transfers of global
Securities shall be limited to transfers in whole, but not in part,
to the Depositary, its successors or their respective nominees. If
at any time the Depositary for Securities of a series notifies the
Company that it is unwilling, unable or no longer qualifies to
continue as Depositary for Securities of such series or if at any
time the Depositary for such series shall no longer be registered
or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor
Depositary for the Securities of such series. If a successor to the
Depositary for Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the
Company’s election pursuant to Section 3.01 shall no
longer be effective with respect to the Securities for such series
and the Company will execute, and the applicable Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive, registered form, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the global Security or Securities
representing such series and evidencing the same indebtedness in
exchange for such global Security or Securities.
The
Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by such global
Security or Securities. In such event the Company will execute, and
the applicable Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in
definitive, registered form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
global Security or Securities representing such series and
evidencing the same indebtedness in exchange for such global
Security or Securities.
Upon
the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the
applicable Trustee. Securities issued in exchange for a global
Security pursuant to this Section 3.05 shall be registered in such
names and in such authorized denominations as the Depositary for
such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the applicable
Trustee in writing. The applicable Trustee shall deliver such
Securities to the Persons in whose names such Securities are so
registered.
All
Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every
Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Security Registrar or applicable securities transfer industry
practices) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Any
registration of transfer or exchange of Securities may be subject
to service charges by the Securities Registrar and the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not
involving any transfer.
The
Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series in definitive form
during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of
that series under Section 11.03 or 12.03 and ending at the
close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, (C) if
Securities of the series are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange
any Registered Security in definitive form so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any
Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that
series and like tenor;
provided
that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to
issue, register the transfer of or exchange any Security in
definitive form which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security
not to be so repaid.
Mutilated,
Destroyed, Lost and Stolen Securities.
If any
mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the applicable Trustee, the
Company shall execute and the applicable Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and evidencing the same
indebtedness and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, or, in case any such
mutilated Security or coupon has become or is about to become due
and payable, the Company in its discretion may, instead of issuing
a new Security, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, pay such Security or
coupon. If there shall be delivered to the Company and to the
Trustees (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and
(ii) such security (or surety in the case of the Canadian
Trustee) or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustees that such Security or
coupon has been acquired by a bona fide purchaser , the Company
shall execute and upon Company Order the applicable Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and evidencing the
same indebtedness and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon
appertains.
Notwithstanding the
provisions of the previous two paragraphs, in case any such
mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to such
mutilated, destroyed, lost or stolen Security or to the Security to
which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon;
provided, however
, that payment of
principal of, premium (if any) and interest (if any) on Bearer
Securities shall, except as otherwise provided in
Section 10.02, be payable only at an office or agency located
outside the United States and Canada and, unless otherwise
specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon
the issuance of any new Security under this Section 3.06, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustees) connected therewith.
Every
new Security of any series with its coupons, if any, issued
pursuant to this Section 3.06 in lieu of any mutilated, destroyed,
lost or stolen Security or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen
Security and its coupons, if any, or the mutilated, destroyed, lost
or stolen coupon shall be at any time enforceable by anyone, and
the Holders of such Security shall be entitled to all the benefits
of this Indenture equally and proportionately with the Holders of
any and all other Securities of that series and their coupons, if
any, duly issued hereunder.
The
provisions of this Section 3.06 as amended or supplemented pursuant
to this Indenture with respect to a particular series of Securities
or generally are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons.
Payment
of Principal, Premium and Interest; Interest Rights Preserved;
Optional Interest Reset.
(a)
Unless
otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest (if any) on any
Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid by
the Paying Agent to the Person in whose name such Security (or one
or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose pursuant to
Section 10.02;
provided,
however
, that each installment of interest (if any) on any
Registered Security may at the Company’s option be paid by
(i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to
Section 3.09, to the address of such Person as it appears on
the Security Register or (ii) wire transfer to an account
located in the United States maintained by the Person entitled to
such payment as specified in the Security Register. Unless
otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, principal and premium (if any) paid in
relation to any Security shall be paid to the Holder of such
Security only upon presentation and surrender of such Security at
the office or agency of the Company maintained for such purpose
pursuant to Section 10.02.
Unless
otherwise provided as contemplated by Section 3.01 with
respect to the Securities of any series, payment of interest (if
any) may be made, in the case of a Bearer Security, by transfer to
an account located outside the United States and Canada maintained
by the payee.
Unless
otherwise provided as contemplated by Section 3.01, every
permanent global Security will provide that interest (if any)
payable on any Interest Payment Date will be paid to the Depositary
with respect to that portion of such permanent global Security held
for its account by the Depositary, for the purpose of permitting
the Depositary to credit the interest (if any) received by it in
respect of such permanent global Security to the accounts of the
beneficial owners thereof.
Any
interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such
Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest
and, if applicable, interest thereon herein collectively called
“
Defaulted
Interest
”)
must be paid
by the Company as provided for in either clause (1) or (2), at the
Company’s election
:
(1)
The Company may
elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustees in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the applicable Trustee an amount of
money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustees for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustees shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustees of the
notice of the proposed payment. The Trustees shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to
be given in the manner provided in Section 1.07, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose name the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following
clause (2).
(2)
The Company may
make payment of any Defaulted Interest on the Registered Securities
of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities
may be listed, and, upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustees.
(b) The
provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such
modifications, additions or substitutions as may be specified
pursuant to such Section 3.01). The interest rate (or the
spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security
(each an “
Optional Reset
Date
”). The Company may exercise such option with
respect to such Security by notifying the Trustees of such exercise
at least 50 but not more than 60 days prior to an Optional
Reset Date for such Security. Not later than 40 days prior to
each Optional Reset Date, the Trustees shall transmit, in the
manner provided for in Section 1.07, to the Holder of any such
Security a notice (the “
Reset
Notice
”) indicating whether the Company has elected to
reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so
(i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any,
for redemption during the period from such Optional Reset Date to
the next Optional Reset Date or if there is no such next Optional
Reset Date, to the Stated Maturity of such Security (each such
period a “
Subsequent Interest
Period
”), including the date or dates on which or the
period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest
Period.
Notwithstanding the
foregoing, not later than 20 days prior to the Optional Reset
Date, the Company may, at its option, revoke the interest rate (or
the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish
an interest rate (or the spread or spread multiplier, if
applicable) that is higher than the interest rate (or the spread or
spread multiplier, if applicable) provided for in the Reset Notice,
for the Subsequent Interest Period by causing the Trustees to
transmit, in the manner provided for in Section 1.07, notice
of such higher interest rate (or such higher spread or spread
multiplier, if applicable) to the Holder of such Security. Such
notice shall be irrevocable. All Securities with respect to which
the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have
validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher
spread or spread multiplier, if applicable).
The
Holder of any such Security will have the option to elect repayment
by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus
interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the
option of Holders except that the period for delivery or
notification to the Trustees shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if
the Holder has tendered any Security for repayment pursuant to the
Reset Notice, the Holder may, by written notice to the Trustees,
revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject
to the foregoing provisions of this Section 3.07 and
Section 3.05, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
Optional
Extension of Stated Maturity.
The
provisions of this Section 3.08 may be made applicable to any
series of Securities pursuant to Section 3.01 (with such
modifications, additions or substitutions as may be specified
pursuant to such Section 3.01). The Stated Maturity of any
Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such
Security (each an “
Extension
Period
”) up to but not beyond the date (the
“
Final
Maturity
”) set forth on the face of such Security. The
Company may exercise such option with respect to any Security by
notifying the Trustees of such exercise at least 50 but not more
than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the
“
Original Stated
Maturity
”). If the Company exercises such option, the
Trustees shall transmit, in the manner provided for in
Section 1.07, to the Holder of such Security not later than
40 days prior to the Original Stated Maturity a notice (the
“
Extension
Notice
”) indicating (i) the election of the
Company to extend the Stated Maturity, (ii) the new Stated
Maturity, (iii) the interest rate (if any) applicable to the
Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustees’
transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by
the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of
such Extension Notice.
Notwithstanding the
foregoing, not later than 20 days before the Original Stated
Maturity of such Security, the Company may, at its option, revoke
the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by
causing the Trustees to transmit, in the manner provided for in
Section 1.07, notice of such higher interest rate to the
Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended
will bear such higher interest rate.
If the
Company extends the Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on
the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to
obtain repayment on the Original Stated Maturity once the Company
has extended the Maturity thereof, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or
notification to the Trustees shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that,
if the Holder has tendered any Security for repayment pursuant to
an Extension Notice, the Holder may by written notice to the
Trustees revoke such tender for repayment until the close of
business on the tenth day before the Original Stated
Maturity.
Prior
to due presentment of a Registered Security for registration of
transfer, the Company, the Trustees and any agent of the Company or
the Trustees may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium (if any)
and (subject to Sections 3.05 and 3.07) interest (if any) on
such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and none of the Company, the Trustees or
any agent of the Company or the Trustees shall be affected by
notice to the contrary.
Title
to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustees and any agent of the
Company or the Trustees may treat the bearer of any Bearer Security
and the bearer of any coupon as the absolute owner of such Security
or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or
not such Security or coupons be overdue, and none of the Company,
the Trustees or any agent of the Company or the Trustees shall be
affected by notice to the contrary.
The Depositary for Securities may be treated by
the Company, the Trustees, and any agent of the Company or the
Trustees as the owner of such global Security for all purposes
whatsoever
.
None of the
Company, the Trustees, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the
foregoing, with respect to any global Security, nothing herein
shall prevent the Company, the Trustees, or any agent of the
Company or the Trustees, from giving effect to any written
certification, proxy or other authorization furnished by any
Depositary, as a Holder, with respect to such global Security or
impair, as between such Depositary and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such Depositary
(or its nominee) as Holder of such global Security.
All
Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than a Trustee,
be delivered to either Trustee. All Securities and coupons so
delivered to either Trustee shall be promptly cancelled by such
Trustee. The Company may at any time deliver to a Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to either Trustee (or to any other
Person for delivery to such Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be
promptly cancelled by such Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to either
Trustee for cancellation. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in
this Section 3.10, except as expressly permitted by this Indenture.
All cancelled Securities held by either Trustee shall be disposed
of by such Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company unless by
Company Order the Company shall direct that cancelled Securities be
returned to it.
Except
as otherwise specified as contemplated by Section 3.01 with
respect to any Securities, interest (if any) on the Securities of
each series shall be computed on the basis of a 360-day year of
twelve 30-day months. For the purposes of disclosure under the
Interest Act (Canada), the yearly rate of interest to which
interest calculated under a Security for any period in any calendar
year (the “
calculation
period
”) is equivalent, is the rate payable under a
Security in respect of the calculation period multiplied by a
fraction the numerator of which is the actual number of days in
such calendar year and the denominator of which is the actual
number of days in the calculation period.
Currency
and Manner of Payments in Respect of Securities.
(a) With
respect to Registered Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b)
below, and with respect to Bearer Securities of any series, except
as provided in paragraph (d) below, payment of the principal
of, premium (if any) and interest (if any) on such Registered
Security or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 3.12
may be modified or superseded with respect to any Securities
pursuant to Section 3.01.
(b) It
may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive
payments of principal of, premium (if any) or interest (if any) on
such Registered Securities in any of the Currencies which may be
designated for such election by delivering to the Trustees a
written election with signature guarantees and in the applicable
form established pursuant to Section 3.01, not later than the
close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by
such Holder or such transferee by written notice to the Trustees
(but any such change must be made not later than the close of
business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such
payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or
with respect to which the Company has deposited funds pursuant to
Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee).
Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustees not later than the
close of business on the applicable Election Date will be paid the
amount due on the applicable payment date in the relevant Currency
as provided in Section 3.12(a). The Trustees shall notify the
Exchange Rate Agent as soon as practicable after the Election Date
of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless
otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (b) above has been provided for
pursuant to Section 3.01, then, unless otherwise specified
pursuant to Section 3.01, not later than the fourth Business
Day after the Election Date for each payment date for Registered
Securities of any series, the Exchange Rate Agent will deliver to
the Company a written notice specifying, in the Currency in which
Registered Securities of such series are payable, the respective
aggregate amounts of principal of, premium (if any) and interest
(if any) on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in respect
of the Registered Securities as to which the Holders of Registered
Securities of such series shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for
pursuant to Section 3.01 and if at least one Holder has made
such election, then, unless otherwise specified pursuant to
Section 3.01, on the second Business Day preceding such
payment date the Company will deliver to the Trustees for such
series of Registered Securities an Exchange Rate Officer’s
Certificate in respect of the Dollar or Foreign Currency payments
to be made on such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar or Foreign Currency
amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business Day
(the “
Valuation
Date
”) immediately preceding each payment date, and
such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If
a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b)
above, then, with respect to each date for the payment of principal
of, premium (if any) and interest (if any) on the applicable
Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was
used (the “
Conversion
Date
”), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar amount to be paid by the
Company to the Trustees and by the Trustees or any Paying Agent to
the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency
unit, the Dollar Equivalent of the Foreign Currency or, in the case
of a currency unit, the Dollar Equivalent of the Currency Unit, in
each case as determined by the Exchange Rate Agent in the manner
provided in paragraph (f) or (g) below.
(e) Unless
otherwise specified pursuant to Section 3.01, if the Holder of
a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with
respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) above.
(f) The
“
Dollar Equivalent of the
Foreign Currency
” shall be determined by the Exchange
Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The
“
Dollar Equivalent of the
Currency Unit
” shall be determined by the Exchange
Rate Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(h) For
purposes of this Section 3.12 the following terms shall have the
following meanings:
A
“
Component
Currency
” shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the Euro.
A
“
Specified
Amount
” of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not
limited to, the Euro, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by
an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall
thereafter be a Component Currency. If after the Conversion Date
any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on
the date of such replacement equal to the Dollar Equivalent value
of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited to,
the Euro, a Conversion Event (other than any event referred to
above in this definition of “
Specified Amount
”) occurs with
respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars
at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
“
Election Date
” shall mean the date
for any series of Registered Securities as specified pursuant to
clause (15) of Section 3.01 by which the written election
referred to in paragraph (b) above may be made.
All
decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be in its
sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the
Company, the Trustees and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the
Trustees of any such decision or determination.
In the
event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustees and to
the Exchange Rate Agent (and the Trustees will promptly thereafter
give notice in the manner provided for in Section 1.07 to the
affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with
respect to the Euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give
written notice thereof to the Trustees and to the Exchange Rate
Agent (and the Trustees will promptly thereafter give notice in the
manner provided for in Section 1.07 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified
Amount above has occurred, the Company will similarly give written
notice to the Trustees and the Exchange Rate Agent.
The
Trustees shall be fully justified and protected in relying and
acting upon information received by it from the Company and the
Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate
Agent.
Appointment
and Resignation of Successor Exchange Rate Agent.
(a) Unless
otherwise specified pursuant to Section 3.01, if and so long
as the Securities of any series (i) are denominated in a
Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any
other provision of this Indenture, then the Company will maintain
with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to
Section 3.01 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the
payment of principal, premium (if any) and interest (if any)
pursuant to Section 3.12.
(b) The
Company shall have the right to remove and replace from time to
time the Exchange Rate Agent for any series of Securities. No
resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section 3.13 shall
become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustees.
(c) If
the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly appoint a successor Exchange Rate
Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise
specified pursuant to Section 3.01, at any time there shall
only be one Exchange Rate Agent with respect to the Securities of
any particular series that are originally issued by the Company on
the same date and that are initially denominated and/or payable in
the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Satisfaction
and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto and the rights of Holders of
such series of Securities and any related coupons to receive,
solely from the trust fund described in subclause (b) of
clause (1) of this Section 4.01, payments in respect of the
principal of, premium (if any) and interest (if any) on such
Securities and any related coupons when such payments are due and
except as provided in the last paragraph of this Section 4.01) and
the Trustees, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(a) all
Securities of such series theretofore authenticated and delivered
and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 3.05, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06,
(iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.06, and
(iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust with either Trustee
or any Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company, as provided in
Section 10.03) have been delivered to either Trustee for
cancellation; or
(b) all
Securities of such series and, in the case of (i) or (ii) below,
any coupons appertaining thereto not theretofore delivered to
either Trustee for cancellation
(i)
have become due and
payable, or
(ii)
will become due and
payable at their Stated Maturity within one year, or
(iii)
if redeemable at
the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustees for the
giving of notice of redemption by the Trustees in the name, and at
the expense, of the Company,
and the
Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with either Trustee as trust
funds in trust for such purpose an amount in the Currency in which
the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to such Trustee for cancellation, for
principal, premium (if any) and interest (if any) to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2)
the Company has
paid or caused to be paid all other sums payable hereunder by the
Company; and
(3)
the Company has
delivered to the Trustees an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied
with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustees under Section 6.07, the
obligations of the Trustees to any Authenticating Agent under
Section 6.12 and, if money shall have been deposited with the
Trustees pursuant to subclause (b) of clause (1) of this
Section 4.01, the obligations of the Trustees under
Section 4.02 and the last paragraph of Section 10.03
shall survive.
Application
of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustees pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to
the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustees may
determine, to the Persons entitled thereto, of the principal,
premium (if any) and interest (if any) for whose payment such money
has been deposited with the Trustees; but such money need not be
segregated from other funds except to the extent required by
law.
ARTICLE FIVE
“
Event of Default
,” wherever used
herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is specifically deleted or
modified in or pursuant to a supplemental indenture, Board
Resolution or Officer’s Certificate establishing the terms of
such series pursuant to Section 3.01 of this
Indenture:
(1)
default in the
payment of any interest due on any Security of that series, or any
related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of
30 days; or
(2)
default in the
payment of the principal or premium (if any) in respect of any
Security of that series at its Maturity; or
(3)
default in the
deposit of any sinking fund, amortization or analogous payment when
due by the terms of any Security of that series and
Article Twelve; or
(4)
default in the
performance, or breach, of any covenant or agreement of the Company
in this Indenture which affects or is applicable to the Securities
of that series (other than a covenant or agreement, a default in
whose performance or whose breach is elsewhere in this Section 5.01
specifically dealt with), and continuance of such default or breach
for a period of 60 days after there has been given (and 120
days with respect to a default or breach under Section 7.05), by
registered or certified mail, to the Company by the Trustees or to
the Company and the Trustees by the Holders of at least 25% in
principal amount of all Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of
Default” hereunder; or
(5)
the entry of a
decree or order by a court having jurisdiction in the premises
adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under or
subject to the Bankruptcy and Insolvency Act (Canada), the
Companies’ Creditors Arrangement Act (Canada), the U.S.
Federal Bankruptcy Code or any other federal, provincial, state or
foreign bankruptcy, insolvency or analogous laws, or the issuance
of a sequestration order or the (appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or in receipt of any substantial part of
the property of the Company, and any such decree, order or
appointment continues unstayed and in effect for a period of 90
consecutive days; or
(6)
the institution by
the Company of proceedings to be adjudicated bankrupt or insolvent,
or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under or subject to the
Bankruptcy and Insolvency Act (Canada), the Companies’
Creditors Arrangement Act (Canada), the U.S. Federal Bankruptcy
Code or any other federal, provincial, state or foreign bankruptcy,
insolvency or analogous laws or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making
by it of a general assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due or the taking by it of corporate
action in furtherance of any of the aforesaid purposes;
or
(7)
any other Event of
Default provided with respect to Securities of that
series.
Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default described in clause (1), (2), (3), (4) or (7)
of Section 5.01 with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such
case, either Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series, may
declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of
that series) of all of the Securities of that series and all
interest thereon to be due and payable immediately, by a notice in
writing to the Company (and to the Trustees if given by Holders),
and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable. If an
Event of Default specified in clause (5) or (6) of
Section 5.01 occurs and is continuing, then the principal
amount of all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on
the part of the Trustees or any Holder.
At any
time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money
due has been obtained by either Trustee as hereinafter provided in
this Article Five, the Holders of a majority in principal amount of
the Outstanding Securities of that series (or of all series, as the
case may be), by written notice to the Company and the Trustees,
may rescind and annul such declaration and its consequences
if:
(1)
the Company has
paid or deposited with either Trustee a sum sufficient to pay in
the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for
the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and
3.12(e)),
(a)
all overdue
interest (if any) on all Outstanding Securities of that series (or
of all series, as the case may be) and any related
coupons,
(b)
all unpaid
principal of and premium (if any) on any Outstanding Securities of
that series (or of all series, as the case may be) which has become
due otherwise than by such declaration of acceleration, and
interest on such unpaid principal and premium (if any) at the rate
or rates prescribed therefor in such Securities,
(c)
to the extent that
payment of such interest is legally enforceable, interest on
overdue interest at the rate or rates prescribed therefor in such
Securities, and
(d)
all sums paid or
advanced by the Trustees hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustees, their agents
and counsel; and
(2)
all Events of
Default with respect to Securities of that series (or of all
series, as the case may be), other than the non-payment of amounts
of principal of, premium (if any) or interest (if any) on
Securities of that series (or of all series, as the case may be)
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 5.13.
No such
rescission shall affect any subsequent default or impair any right
consequent thereon.
Collection
of Debt and Suits for Enforcement by Trustees.
The
Company covenants that if
(1)
default is made in
the payment of any installment of interest on any Security and any
related coupon when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2)
default is made in
the payment of the principal of or premium (if any) any Security at
the Maturity thereof,
then
the Company will, upon demand of the Trustees, pay to the
applicable Trustee for the benefit of the Holders of such
Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal of, premium (if any) and
interest (if any) and interest on any overdue principal, overdue
premium (if any) and, to the extent lawful, overdue interest (if
any), at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances
of the Trustees, their agents and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the
Trustees, in their own names as trustees of an express trust, may
institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an
Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, either
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series
(or of all series, as the case may be) by such appropriate judicial
proceedings as such Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
Trustees
May File Proofs of Claim.
In case
of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, each Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether either Trustee shall have made any demand
on the Company for the payment of overdue principal, premium (if
any) or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i)
to file and prove a
claim for the whole amount of principal and premium (if any), or
such portion of the principal amount of any series of Original
Issue Discount Securities or Indexed Securities as may be specified
in the terms of such series, and interest (if any) owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of such Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii)
to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to such Trustee
and, in the event that such Trustee shall consent to the making of
such payments directly to the Holders, to pay to such Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of each Trustee, its agents and counsel,
and any other amounts due to such Trustee under
Section 6.07.
Nothing
herein contained shall be deemed to authorize the Trustees to
authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustees to vote in respect of the claim of any
Holder in any such proceeding.
Trustees
May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture, the Securities or
coupons may be prosecuted and enforced by the Trustees without the
possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by either Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been
recovered.
Application
of Money Collected.
Any
money collected by either Trustee pursuant to this Article Five
shall be applied in the following order, at the date or dates fixed
by the Trustees and, in case of the distribution of such money on
account of principal of, premium (if any) or interest (if any) upon
presentation of the Securities or coupons, or both, as the case may
be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First:
to the payment of all amounts due the Trustees under
Section 6.07;
Second:
to the payment of the amounts then due and unpaid for principal of,
premium (if any) and interest (if any), on the Securities and
coupons in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities
and coupons for principal, premium (if any) and interest (if any),
respectively; and
Third:
the balance, if any, to the Person or Persons entitled
thereto.
No
Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1)
such Holder has
previously given written notice to the Trustees of a continuing
Event of Default with respect to the Securities of that
series;
(2)
the Holders of not
less than 25% in principal amount of the Outstanding Securities of
that series in the case of any Event of Default described in
clause (1), (2), (3), (4) or (7) of Section 5.01, or, in
the case of any Event of Default described in clause (5) or
(6) of Section 5.01, the Holders of not less than 25% in
principal amount of all Outstanding Securities, shall have made
written request to the Trustees to institute proceedings in respect
of such Event of Default in their own names as Trustees
hereunder;
(3)
such Holder or
Holders have offered to the Trustees reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance
with such request;
(4)
the Trustees for
60 days after their receipt of such notice, request and offer
of indemnity have failed to institute any such proceeding;
and
(5)
no direction
inconsistent with such written request has been given to the
Trustees during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that
series in the case of any Event of Default described in
clause (1), (2), (3), (4) or (7) of Section 5.01, or in
the case of any Event of Default described in clause (5) or
(6) of Section 5.01, by the Holders of a majority or more in
principal amount of all Outstanding Securities;
it
being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of the same
series, in the case of any Event of Default described in
clause (1), (2), (3), (4) or (7) of Section 5.01, or of
Holders of all Securities in the case of any Event of Default
described in clause (5) or (6) of Section 5.01, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the
case of any Event of Default described in clause (1), (2),
(3), (4) or (7) of Section 5.01, or of Holders of all
Securities in the case of any Event of Default described in
clause (5) or (6) of Section 5.01.
Unconditional
Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any
other provision in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of
and premium (if any) and (subject to Section 3.07) interest
(if any) on, such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of the Holder as contemplated by
Article Twelve, on the Repayment Date) and subject to the
limitations on a Holder’s ability to institute suit contained
Section 5.07, to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
Restoration
of Rights and Remedies.
If
either Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to such Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustees and the Holders of Securities
and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustees and the Holders shall continue as though no such
proceeding had been instituted.
Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustees or to the Holders of
Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not, to the extent
permitted by law, prevent the concurrent assertion or employment of
any other appropriate right or remedy.
Delay
or Omission Not Waiver.
No
delay or omission of the Trustees or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the
Trustees or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustees or by the
Holders, as the case may be.
With
respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities
of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustees, or exercising any trust or power conferred on the
Trustees, relating to or arising under clause (1), (2), (3),
(4) or (7) of Section 5.01, and, with respect to all
Securities, the Holders of not less than a majority in principal
amount of all Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustees, or exercising any trust or power
conferred on the Trustees, not relating to or arising under
clause (1), (2), (3), (4) or (7) of Section 5.01,
provided
that in each
case
(1)
such direction
shall not be in conflict with any rule of law or with this
Indenture,
(2)
the Trustees may
take any other action deemed proper by the Trustees which is not
inconsistent with such direction, and
(3)
the Trustees need
not take any action which might involve them in personal liability
or be unjustly prejudicial to the Holders of Securities of such
series not consenting.
Subject
to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive
any past Default described in clause (1), (2), (3), (4) or (7)
of Section 5.01 (or, in the case of a Default described in
clause (5) or (6) of Section 5.01, the Holders of not
less than a majority in principal amount of all Outstanding
Securities may waive any such past Default), and its consequences,
except a default
(1)
in respect of the
payment of the principal of, premium (if any) or interest (if any)
on any Security or any related coupon, or
(2)
in respect of a
covenant or provision herein which under Article Nine cannot
be modified or amended without the consent of the Holder of each
outstanding Security of such series affected.
Upon
any such waiver, any such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Waiver
of Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustees, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
In any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against either Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in Trust
Indenture Legislation;
provided,
however
, that neither this Section 5.15 nor the provisions
of TIA Section 315(e) shall apply to any suit instituted by
either Trustee or by any Holder or group of Holders holding more
than 10% in principal amount of all Outstanding Securities or by
any Holder of any Security on any suit for the enforcement of the
right to receive the principal of and interest on any such
Securities.
ARTICLE SIX
Each
Trustee shall promptly give the other Trustee notice of any Default
or Event of Default known to it. Within a reasonable time, but no
more than 30 days after either Trustee has knowledge of any
Default hereunder with respect to the Securities of any series, one
or both of the Trustees shall transmit in the manner and to the
extent provided in Trust Indenture Legislation, including TIA
Section 313(c),
notice to the Holders
of such Default hereunder known to either Trustee, unless such
Default shall have been cured or waived (and, in the case where
such Default shall have been cured, the Trustees shall notify the
Holders in writing of such cure in writing within a reasonable
time, but not exceeding 30 days, after the Trustees have become
aware that the Default has been cured);
provided, however
, that, except in the
case of a Default in the payment of the principal of, premium (if
any) or interest (if any) on any Security of such series or in the
payment of any sinking fund installment with respect to Securities
of such series, the Trustees shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible
Officers of each Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of
Securities of such series and any related coupons;
provided further
that in the case of
any Default of the character specified in clause (4) of Section
5.01 with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the
occurrence thereof.
Certain
Duties and Responsibilities of Trustees.
(a) The
Trustees, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall
undertake to perform with respect to the Securities of any series
such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants shall be read into this
Indenture against the Trustees.
(b) In
all instances, in the exercise of the powers, rights, duties and
discharge of obligations prescribed or conferred by the terms of
this Indenture, each Trustee shall act honestly and in good faith
with a view to the best interests of the Holders and exercise that
degree of care, diligence and skill that a reasonably prudent
trustee in respect of indentures for the purpose of issuing
corporate debt obligations would exercise in comparable
circumstances.
(c) No
provision of this Indenture shall be construed to relieve each
Trustee from liability for its own actions or failure to act in
accordance with Subsection 6.02(b), except that:
(i)
prior to the
occurrence of an Event of Default and after the curing or waiving
of all such Events of Default that may have occurred:
(A)
the duties and
obligations of each Trustee with respect to the Securities of any
series shall be determined solely by the express provisions of this
Indenture, and the Trustees shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustees;
and
(B)
in the absence of
bad faith on the part of either Trustee, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustees and conforming
to the requirements of this Indenture and Trust Indenture
Legislation; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Trustees, the Trustees shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
provided, however
, the Canadian Trustee
shall not be required to determine whether the certificates or
opinions presented to it conform to the Trust Indenture Act and the
U.S. Trustee shall not be required to determine whether the
certificates or opinions presented to it conform to Canadian Trust
Indenture Legislation.
(ii)
the Trustees shall
not be liable with respect to any action taken or omitted to be
taken by them in good faith in accordance with the direction of the
Holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustees, or exercising any trust or power
conferred upon the Trustees under this Indenture;
(iii)
none of the
provisions contained in this Indenture shall require either Trustee
to expend or risk their own funds or otherwise incur personal or
any financial liability in the performance of any of their duties
or in the exercise of any of their rights or powers;
and
(iv)
whether or not
therein expressly so provided, except to the extent expressly
provided herein to the contrary, every provision of this Indenture
relating to the conduct or effecting the liability or affording
protection to the Trustees shall be subject to the provisions of
this Section 6.02.
(d) Notwithstanding
the provisions of this Section 6.02 or any provision in this
Indenture or in the Securities, the Trustees will not be charged
with knowledge of the existence of any Event of Default or any
other fact that would prohibit the making of any payment of monies
to or by the Trustees, or the taking of any other action by the
Trustees, unless and until the Trustees have received written
notice thereof from the Company or any Holder.
Certain
Rights of Trustees.
Subject
to the provisions of TIA Sections 315(a) through
315(d):
(1)
the Trustees may
rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by them to be genuine and to have been signed or
presented by the proper party or parties;
(2)
any request or
direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3)
whenever in the
administration of this Indenture the Trustees shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, each Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer’s
Certificate;
(4)
the Trustees may
consult with counsel and the written advice of such counsel or any
opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
them hereunder in good faith and in reliance thereon;
(5)
the Trustees shall
be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any
of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered
to the Trustees reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by them in
compliance with such request or direction;
(6)
the Trustees shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustees, in their discretion, may make such
further inquiry or investigation into such facts or matters as they
may see fit, and, if the Trustees shall determine to make such
further inquiry or investigation, they shall be entitled to examine
the books, records and premises of the Company, personally or by
agent or attorney;
(7)
in an Event of
Default, the Trustees’ powers shall not be infringed upon so
long as they act in accordance with Section 6.02(b);
(8)
the Trustees may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and
the Trustees shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by them hereunder; and
(9)
the Trustees shall
not be liable for any action taken, suffered or omitted by them in
good faith and believed by them to be authorized or within the
discretion or rights or powers conferred upon them by this
Indenture, so long as they act in accordance with this Section
6.02(b).
Trustees
Not Responsible for Recitals or Issuance of
Securities.
The
recitals contained herein and in the Securities, except for a
Trustee’s certificate of authentication, and in any coupons
shall be taken as the statements of the Company, and neither
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustees make no representations as to the
validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustees represent that they are duly
authorized to execute and deliver this Indenture, authenticate the
Securities and perform their obligations hereunder and that the
statements made by the U.S. Trustee in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. Neither Trustee
nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Nothing herein contained will impose on either Trustee any
obligation to see to, or to require evidence of, the registration
or filing (or renewal thereof) of this Indenture or any
supplemental indenture. The Trustees shall not be bound to give
notice to any person of the execution hereof.
The
Trustees, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustees, in
their individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company,
including, without limitation, as a creditor of the Company, with
the same rights they would have if they were not Trustees,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent. A Trustee that has resigned or is removed shall remain
subject to TIA Section 311(a) to the extent provided
therein.
Money
held by the Trustees in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustees
shall be under no liability for interest on any money received by
them hereunder except as otherwise agreed with the
Company.
Compensation
and Reimbursement
The
Company agrees:
(1)
to pay to the
Trustees from time to time reasonable compensation for all services
rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee
of an express trust);
(2)
except as otherwise
expressly provided herein, to reimburse the Trustees upon their
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision
of this Indenture (including the reasonable compensation and the
expenses and disbursements of their agents and counsel), except any
such expense, disbursement or advance as may be attributable to the
U.S. Trustee’s gross negligence or bad faith or the Canadian
Trustee’s gross negligence or willful misconduct,
respectively; and
(3)
to indemnify the
Trustees for, and to hold them and their directors, officers,
agents, representatives, successors, assigns and employees harmless
against, any loss, liability or expense incurred without gross
negligence or bad faith on the part of the U.S. Trustee, or gross
negligence or willful misconduct on the part of the Canadian
Trustee, respectively, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including reasonable attorneys’ fees and other reasonable
costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of
their powers or duties hereunder.
The
obligations of the Company under this Section 6.07 to compensate
the Trustees, to pay or reimburse the Trustees for expenses,
disbursements and advances and to indemnify and hold harmless the
Trustees shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee. As security for the
performance of such obligations of the Company, the Trustees shall
have a claim prior to the Securities upon all property and funds
held or collected by the Trustees as such, except funds held in
trust for the payment of principal of, premium (if any) or interest
(if any) on particular Securities or any coupons.
When
the Trustees incur expenses or render services in connection with
an Event of Default specified in clause (5) or (6) of
Section 5.01, the expenses (including reasonable charges and
expense of its counsel) of and the compensation for such services
are intended to constitute expenses of administration under any
applicable United States or Canadian federal, state or provincial
bankruptcy, insolvency or other similar law.
The
provisions of this Section 6.07 shall survive the termination of
this Indenture.
Corporate
Trustees Required; Eligibility.
(1)
There shall be at
all times a U.S. Trustee hereunder which shall be eligible to act
as Trustee under TIA Section 310(a)(1) and, together with its
immediate parent, shall have a combined capital and surplus of at
least $50,000,000. If the U.S. Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements
of United States federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes
of this Section 6.08, the combined capital and surplus of U.S.
Trustee shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If
at any time the U.S. Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.08, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article Six.
(2)
For so long as
required by Trust Indenture Legislation, there shall be a Canadian
Trustee under this Indenture. The Canadian Trustee shall at all
times be a resident or authorized to do business in the Province of
[Ontario] and any other province in Canada where Holders may be
resident from time to time. The Canadian Trustee represents and
warrants that no material conflict of interest exists in the
Canadian Trustee’s role as a fiduciary hereunder and agrees
that in the event of a material conflict of interest arising
hereafter it will, within 30 days after ascertaining that it
has such material conflict of interest, either eliminate the same
or resign its trust hereunder. If any such material conflict of
interests exists or hereafter shall exist, the validity and
enforceability of this Indenture shall not be affected in any
manner whatsoever by reason thereof.
(3)
The Trustees will
not be required to give any bond or security in respect of the
execution of the trusts and powers set out in this Indenture or
otherwise in respect of the premises.
(4)
Neither Trustee nor
any Affiliate of either Trustee shall be appointed a receiver or
receiver and manager or liquidator of all or any part of the assets
or undertaking of the Company.
Resignation
and Removal; Appointment of Successor.
(1)
No resignation or
removal of either Trustee and no appointment of a successor Trustee
pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 6.10.
(2)
Either Trustee may
resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to such Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(3)
Either Trustee may
be removed following 30 days notice at any time with respect to the
Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to such Trustee and to the Company.
(i)
either Trustee
shall acquire any conflicting interest as defined in TIA
Section 310(b) and fail to comply with the provisions of TIA
Section 310(b)(i), or
(ii)
either Trustee
shall fail to comply with the provisions of TIA Section 310(b)
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(iii)
either Trustee
shall cease to be eligible under Section 6.08 and shall fail
to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least
six months, or
(iv)
either Trustee
shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of such Trustee or of its property shall be
appointed or any public officer shall take charge or control of
such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then,
in any such case, (i) the Company, by a Board Resolution, may
remove such Trustee with respect to all Securities, or
(ii) subject to TIA Section 315(e), any Holder who has
been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of such Trustee with respect to all Securities of such
series and the appointment of a successor Trustee or
Trustees.
(5)
If either Trustee
shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of the U.S. Trustee or the
Canadian Trustee for any cause, with respect to the Securities of
one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series)
provided, however
, that the Company
shall not be required to appoint a successor Trustee to the
Canadian Trustee if the Canadian Trustee resigns or is removed and
a Canadian Trustee under this Indenture is no longer required under
Trust Indenture Legislation. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such
series.
(6)
The Company shall
give notice of each resignation and each removal of a Trustee with
respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to
the Holders of Securities of such series in the manner provided for
in Section 1.07. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
(7)
If a Canadian
Trustee under this Indenture is no longer required by Trust
Indenture Legislation, then the Company by a Board Resolution may
remove the Canadian Trustee.
Acceptance
of Appointment by Successor.
(1)
In case of the
appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(2)
In case of the
appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates. Whenever there is a successor Trustee with respect
to one or more (but less than all) series of Securities issued
pursuant to this Indenture, the terms “Indenture” and
“Securities” shall have the meanings specified in the
provisos to the respective definitions of those terms in
Section 1.01 which contemplate such situation.
(3)
Upon reasonable
request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (1) or (2) of this Section 6.10, as
the case may be.
(4)
No successor
Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible
under this Article Six.
Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation into which either Trustee or its corporate trust
business may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which either Trustee shall be a
party, or any corporation succeeding to all or substantially all
the corporate trust business of either Trustee, shall be the
successor of such Trustee hereunder,
provided
such corporation shall be
otherwise qualified and eligible under this Article Six, without
the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by a Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case
any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of such
Trustee;
provided, however
,
that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of
any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Appointment
of Authenticating Agent.
At any
time when any of the Securities remain outstanding, the Trustees
may appoint an Authenticating Agent or Agents, with respect to one
or more series of Securities which shall be authorized to act on
behalf of the Trustees to authenticate Securities of such series
and the Trustees shall give written notice of such appointment to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, in the manner provided for in
Section 1.07. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the applicable Trustee
hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustees, and a
copy of such instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustees or either
Trustee’s certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the
Trustees by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustees by an
Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America,
any state thereof or the District of Columbia or the laws of Canada
or any province thereof, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
United States federal or state or Canadian federal or provincial
authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section 6.12, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 6.12, it shall resign
immediately in the manner and with the effect specified in this
Section 6.12.
Any
corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating
Agent,
provided
such
corporation shall be otherwise eligible under this Section 6.12,
without the execution or filing of any paper or any further act on
the part of the Trustees or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written
notice thereof to the Trustees and to the Company. The Trustees may
at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section 6.12, the Trustees may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give written notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 1.07.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.
The
Trustees agree to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section
6.12, and the Trustees shall be entitled to be reimbursed for such
payments, subject to the provisions of
Section 6.07.
If an
appointment with respect to one or more series is made pursuant to
this Section 6.12, the Securities of such series may have endorsed
thereon, in addition to either Trustee’s certificate of
authentication, an alternate certificate of authentication in the
following form:
(Certificate
of Authentication may be executed by either Trustee)
_____________________,
as U.S. Trustee, certifies that this is one of the Securities of
the series designated therein referred to in the within-mentioned
Indenture.
Dated:
____________
|
__________________________,
as U.S.
Trustee
|
|
|
|
By:
As Authenticating
Agen
|
|
|
|
By:
Authorized
Officer
|
_____________________,
as Canadian Trustee, certifies that this is one of the Securities
of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
____________
|
__________________________,
as
Canadian
Trustee
|
|
|
|
By:
As Authenticating
Agen
|
|
|
|
By:
Authorized
Officer
|
The
rights, powers, duties and obligations conferred and imposed upon
the Trustees are conferred and imposed upon and shall be exercised
and performed by the U.S. Trustee and the Canadian Trustee
individually, except to the extent the Trustees are required under
Trust Indenture Legislation to perform such acts jointly, and
neither Trustee shall be liable or responsible for the acts or
omissions of the other Trustee. If the U.S. Trustee and Canadian
Trustee are unable to agree jointly to act or refrain from acting,
the applicable Trustee shall make the decision in accordance with
its applicable legislation. Unless the context implies or requires
otherwise, any written notice, request, direction, certificate,
instruction, opinion or other document (each such document, a
“
Writing
”)
delivered pursuant to any provision of this Indenture to any of the
U.S. Trustee or the Canadian Trustee shall be deemed for all
purposes of this Indenture as delivery of such Writing to the
Trustee. Each such Trustee in receipt of such Writing shall notify
such other Trustee of its receipt of such Writing within two
Business Days of such receipt
provided, however
, that any failure of
such trustee in receipt of such Writing to so notify such other
Trustee shall not be deemed as a deficiency in the delivery of such
Writing to the Trustee.
Other
Rights of Trustees.
Each
Trustee shall retain the right not to act and shall not be liable
for refusing to act if, due to a lack of information or for any
other reason whatsoever, either Trustee, in its sole judgment,
determines that such act might cause it to be in non-compliance
with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline. Further, should either
Trustee, in its sole judgment, determine at any time that its
acting under this Indenture has resulted in its being in
non-compliance with any applicable anti-money laundering or
anti-terrorist legislation, regulation or guideline, then it shall
have the right to resign on 10 days written notice to all
parties provided (i) that such Trustee’s written notice
shall describe the circumstances of such non-compliance; and
(ii) that if such circumstances are rectified to such
Trustee’s satisfaction within such 10 day period, then
such resignation shall not be effective.
The
parties hereto acknowledge that Canadian federal and provincial
legislation addressing the protection of individuals’
personal information (collectively, “
Privacy Laws
”) applies to
obligations and activities under this Indenture. Despite any other
provision of this Indenture, neither party shall take or direct any
action that would contravene, or cause the other to contravene,
applicable Privacy Laws. The Company, prior to transferring, or
causing to be transferred, personal information to the Canadian
Trustee, shall obtain and retain required consents of the relevant
individuals to the collection, use and disclosure of their personal
information, or shall have determined that such consents either
have been previously given and can be relied on or are not required
under Privacy Laws. The Canadian Trustee shall use commercially
reasonable efforts to ensure that its services hereunder comply
with Privacy Laws. Specifically, the Trustee agrees to
(i) have designated a chief privacy officer;
(ii) maintain policies and procedures to protect personal
information and to receive and respond to any privacy complaint or
inquiry; (iii) use personal information solely for the
purposes of providing its services under or ancillary to this
Indenture and not to use it for any other purpose except with the
consent and direction of the Company; (iv) not sell or
otherwise improperly disclose personal information to any third
party; and (v) use employee administrative, physical and
technological safeguards to reasonably secure and protect personal
information against loss, theft or unauthorized access, use or
modification.
It is
expressly acknowledged and agreed that the Canadian Trustee may, in
the course of providing services hereunder, collect or receive, use
and disclose financial and other personal information about such
parties and/or their representatives, as individuals, or about
other individuals related to the subject matter hereof, and use
such information for the following purposes:
(i)
to provide the
services required under this Indenture and other services that may
be requested from time to time;
(ii)
to help the
Canadian Trustee manage its servicing relationships with such
individuals;
(iii)
to meet the
Canadian Trustee’s legal and regulatory requirements;
and
(iv)
if social insurance
numbers are collected by the Canadian Trustee, to perform tax
reporting and to assist in verification of an individual’s
identity for security purposes.
Further, each party
agrees that it shall not provide or cause to be provided to the
Canadian Trustee any personal information relating to an individual
who is not a party to this Indenture unless that party has assured
itself that such individual understands and has consented to the
aforementioned uses and disclosures. Notwithstanding anything to
the contrary herein, the Company and the Trustees may, without
liability, disclose information about the Holders and beneficial
owners or potential Holders or potential beneficial owners of the
Securities pursuant to subpoena or other order issued by a court of
competent jurisdiction or when otherwise required by applicable
law.
Each
Trustee hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and
benefits conferred hereby and by law in trust for the various
persons who shall from time to time be holders, subject to all the
terms and conditions herein set forth.
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY
Company
to Furnish Trustees Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustees
(1) not more than 15 days after each Regular Record Date,
or such lesser time as required by the Trustees, a list, in such
form as the Trustees may reasonably require, of the names and
addresses of Holders as of such Regular Record Date;
provided, however
, that the Company
shall not be obligated to furnish or cause to be furnished such
list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustees by the Company or at
such times as either Trustee is acting as Security Registrar for
the applicable series of Securities and (2) at such other
times as the Trustees may request in writing within 30 days
after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days
prior to the time such list is furnished.
Preservation
of List of Names and Addresses of Holders.
The
Trustees shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to them as
provided in Section 7.01 and as to the names and addresses of
Holders received by either Trustee in its capacity as Security
Registrar for the applicable series of Securities (if acting in
such capacity).
The
Trustees may destroy any list furnished as provided in
Section 7.01 upon receipt of a new list so
furnished.
Holders
may communicate as provided in TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or under
the Securities.
Disclosure
of Names and Addresses of Holders.
Every
Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustees that none of the Company
or the Trustees or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such
information was derived, and that the Trustees shall not be held
accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
(1)
Within 60 days
after May 15 of each year commencing with the first year after
the first issuance of Securities pursuant to this Indenture, the
U.S. Trustee shall transmit to the Holders of Securities, in the
manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such reporting date, if required by TIA
Section 313(a).
(2)
The U.S. Trustee
shall comply with TIA Sections 313(b) and 313(c).
(3)
A copy of such
report shall, at the time of such transmission to the Holders, be
filed by the U.S. Trustee with the Company, with each securities
exchange upon which any of the Securities are listed (if so listed)
and also with the Commission. The Company agrees to notify the
Trustees when the Securities become listed on any securities
exchange.
(1)
The Company will
file with the Trustees, within 20 days after filing with or
furnishing to the Commission, copies of its annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Company is required to file or
furnish with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustees and the Commission, in
accordance with rules and reulations prescribed by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed in such rules and
regulations;
provided
that
any such reports, information or documents filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval (EDGAR) system shall be deemed filed with the
Trustees.
(2)
The Company will
transmit to all Holders, in the manner and to the extent provided
in TIA Section 313(c), within 30 days after the filing
thereof with the Trustees, such summaries of any information,
documents and reports required to be filed by the Company pursuant
to paragraph (1) of this Section 7.05 as may be required by
rules and regulations prescribed from time to time by the
Commission.
(3)
If at any time the
Securities are guaranteed by a direct or indirect parent of the
Company, and such parent has furnished the reports required by this
Section 7.05 with respect to parent as required by this Section
7.05 as if parent were the Company (including any financial
information required hereby), the Company shall be deemed to be in
compliance with this Section 7.05.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
Company
May Consolidate, etc., only on Certain Terms.
The
Company shall not amalgamate or consolidate with or merge into or
enter into any statutory arrangement with any other Person, or,
directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets to any Person,
unless:
(1)
the Person formed
by or continuing from such amalgamation or consolidation or into
which the Company is merged or with which it enters into such
statutory arrangement or the Person which acquires by operation of
law or by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company shall
be a corporation, partnership or trust organized and validly
existing under the laws of Canada or any province or territory
thereof, the United States of America or any state thereof or the
District of Columbia or, if such amalgamation, consolidation,
merger, statutory arrangement or other transaction would not impair
the rights of Holders, any other country, and, unless the Company
is the continuing corporation, shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustees, in form satisfactory to the Trustees, the Company’s
obligation for the due and punctual payment of the principal of,
premium (if any) and interest (if any) on all the Securities and
the performance and observance of every covenant of this Indenture
on the part of the Company to be performed or
observed;
(2)
immediately after
giving effect to such transaction, no Default or Event of Default
shall have happened and be continuing; and
(3)
the Company or such
Person shall have delivered to the Trustees an Officer’s
Certificate and an Opinion of Counsel, each stating that such
amalgamation, consolidation, merger, statutory arrangement or other
transaction and such supplemental indenture comply with this
Article Eight and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding
the above, the Company may consolidate with, amalgamate with,
undergo an arrangement with, merge with or into an Affiliate of the
Company solely for the purpose of reincorporating the Company in a
state of the United States or the District of Columbia or in
another province or territory of Canada.
This
Section 8.01 shall only apply to a merger, consolidation or
amalgamation in which the Company is not the surviving Person and
to conveyances, leases and transfers by the Company as transferor
or lessor.
Successor
Person Substituted.
Upon
any amalgamation or consolidation by the Company with or merger by
the Company into any other corporation or a statutory arrangement
or any conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company to any Person in
accordance with Section 8.01, the successor Person formed by
such amalgamation or consolidation or into which the Company is
merged or statutory arrangement, or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been
named as the Company herein, and in the event of any such
conveyance or transfer, the Company (which term shall for this
purpose mean the Person named as the “Company” in the
first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in
Section 8.01), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and
liquidated.
ARTICLE NINE
Supplemental
Indentures Without Consent of Holders.
Notwithstanding
Section 9.02, without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustees,
at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the
Trustees, for any of the following purposes:
(1)
to evidence the
succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company contained herein
and in the Securities; or
(2)
to add to the
covenants of the Company for the benefit of the Holders of all or
any series of Securities and any related coupons (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely
for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or
(3)
to add any
additional Events of Default (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating
that such Events of Default are being included solely for the
benefit of such series); or
(4)
to delete or modify
any Events of Default with respect to all or any series of the
Securities, the form and terms of which are being established
pursuant to such supplemental indenture as permitted in Section
3.01 (and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events of
Default are being included solely for the benefit of such series,
and to specify the rights and remedies of the Trustees and the
Holders of such Securities in connection therewith);
or
(5)
to add to or change
any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided
that any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(6)
to change or
eliminate any of the provisions of this Indenture;
provided
that any such change or
elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision; or
(7)
to establish the
form or terms of Securities of any series as permitted by
Sections 2.01 and 3.01; or
(8)
to evidence and
provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.10; or
(9)
to close this
Indenture with respect to the authentication and delivery of
additional series of Securities; or
(10)
to cure any
ambiguity or to correct or supplement any provision contained
herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein
or in any supplemental indenture or to conform the terms hereof, as
amended and supplemented, that are applicable to the Securities of
any series to the description of the terms of such Securities in
the offering memorandum, prospectus supplement or other offering
document applicable to such Securities at the time of initial sale
thereof; or
(11)
to make any change
in any series of Securities that does not adversely affect in any
material respect the rights of the Holders of such Securities;
or
(12)
to add to or change
or eliminate any provision of this Indenture as shall be necessary
or desirable in accordance with any amendments to the Trust
Indenture Act; or
(13)
to supplement any
of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of
any series of Securities pursuant to Sections 4.01, 14.02 and
14.03;
provided
that any
such action shall not adversely affect the interests of the Holders
of Securities of such series and any related coupons or any other
series of Securities in any material respect; or
(14)
to modify,
eliminate or add to the provisions of this Indenture to such extent
as shall be necessary to effect the qualifications of this
Indenture under any applicable law of the United States and Canada
or of any province or territory thereof to the extent they do not
conflict with the applicable law of the United States heretofore or
hereafter enacted.
Supplemental
Indentures with Consent of Holders.
Except
as provided in Section 9.01 and this Section 9.02, with the consent
of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustees,
the Company, when authorized by or pursuant to a Board Resolution,
and the Trustees may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture which affect such series of Securities or of modifying in
any manner the rights of the Holders of Securities of such series
under this Indenture;
provided,
however
, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of such
series,
(1)
change the Stated
Maturity of the principal of, premium (if any) or any installment
of interest (if any) on any Security of such series, or reduce the
principal amount thereof, premium (if any) or the rate of interest
(if any) thereon, or reduce the amount of the principal of an
Original Issue Discount Security of such series that would be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or the amount thereof
provable in bankruptcy pursuant to Section 5.04, or adversely
affect any right of repayment at the option of any Holder of any
Security of such series, or change any Place of Payment where, or
the Currency in which, any Security of such series or any premium
or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment
Date, as the case may be), or adversely affect any right to convert
or exchange any Security as may be provided pursuant to
Section 3.01 herein, or
(2)
reduce the
percentage in principal amount of the Outstanding Securities of
such series required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance
with certain provisions of this Indenture which affect such series
or certain defaults applicable to such series hereunder and their
consequences provided for in this Indenture, or reduce the
requirements of Section 15.04 for quorum or voting with
respect to Securities of such series, or
(3)
modify any of the
provisions of this 9.02 Section, Section 5.13 or
Section 10.09, except to increase any such percentage or to
provide that certain other provisions of this Indenture which
affect such series cannot be modified or waived without the consent
of the Holder of each Outstanding Security of such
series.
A
supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any
such supplemental indenture adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities
of such series, shall not affect the rights under this Indenture of
the Holders of Securities of any other series.
It
shall not be necessary for any Act of Holders under this 9.02
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Execution
of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the
modifications thereby of the trusts created by this Indenture, the
Trustees shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. Each Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects such
Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Effect
of Supplemental Indentures.
Upon
the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
Conformity
with Trust Indenture Legislation.
Every
supplemental indenture executed pursuant to this Article Nine shall
conform to the requirements of Trust Indenture Legislation as then
in effect.
Reference
in Securities to Supplemental Indentures.
Securities of any
series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall
if required by the Trustees, bear a notation in form approved by
the Trustees as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustees
and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the
Trustees in exchange for outstanding Securities of such
series.
Notice
of Supplemental Indentures.
Promptly after the
execution by the Company and the Trustees of any supplemental
indenture pursuant to the provisions of Section 9.02, the
Company shall give notice thereof to the Holders of each
outstanding Security affected, in the manner provided for in
Section 1.07, setting forth in general terms the substance of
such supplemental indenture.
ARTICLE TEN
Payment
of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and
punctually pay the principal of, premium (if any) and interest (if
any), on the Securities of that series in accordance with the terms
of the Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by
Section 3.01 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced
thereby as they severally mature.
Maintenance
of Office or Agency.
(1)
If the Securities
of a series are issuable as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where
Securities of that series that are convertible or exchangeable may
be surrendered for conversion or exchange, as applicable, and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and, if
the Securities of a series are also issuable as Bearer Securities,
where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described
in Subsection 10.02(3).
(2)
If Securities of a
series are issuable as Bearer Securities, the Company will maintain
(A) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment;
provided, however
, that, if
the Securities of that series are listed on any securities exchange
located outside the United States and such securities exchange
shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the
United States so long as the Securities of that series are listed
on such exchange and (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible and
exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served.
(3)
The Company will
give prompt written notice to the Trustees of the location, and any
change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustees with the address
thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Offices of the Trustees,
except that Bearer Securities of any series and the related coupons
may be presented and surrendered for payment at the offices
specified in the Security and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders,
notices and demands.
(4)
Unless otherwise
specified with respect to any Securities pursuant to
Section 3.01, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States;
provided, however
, that, if the
Securities of a series are payable in Dollars, payment of principal
of, premium (if any) and interest (if any), on any Bearer Security
shall be made at the office of the Company’s Paying Agent in
The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium or interest, as the case may
be, at all offices or agencies outside the United States maintained
for such purpose by the Company in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other
similar restrictions.
(5)
The Company may
also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from
time to time rescind any such designation;
provided, however
, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in accordance
with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to
the Trustees of any such designation or rescission and of any
change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated
by Section 3.01 with respect to a series of Securities, the
Company hereby initially appoints the U.S. Trustee at its Corporate
Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and
demands.
(6)
Unless otherwise
specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series
(i) are denominated in a Currency other than Dollars or
(ii) may be payable in a Currency other than Dollars, or so
long as it is required under any other provision of the Indenture,
then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate
Agent.
Money
for Securities Payments to Be Held in Trust.
If the
Company shall at any time act as its own Paying Agent with respect
to any series of Securities and any related coupons, it will, on or
before each due date of the principal of, premium (if any) or
interest (if any) on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)) sufficient to pay the principal of, premium (if any) or
interest (if any) on Securities of such series so becoming due
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustees of its
action or failure so to act.
Whenever the
Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, prior to or on each
due date of the principal of, premium (if any) or interest (if any)
on any Securities of that series, deposit with a Paying Agent a sum
(in the Currency described in the preceding paragraph) sufficient
to pay the principal, premium (if any) or interest (if any) so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is a Trustee) the Company will promptly
notify the Trustees of its action or failure so to
act.
The
Company will cause each Paying Agent (other than the Trustees) for
any series of Securities to execute and deliver to the Trustees an
instrument in which such Paying Agent shall agree with the
Trustees, subject to the provisions of this 10.03 Section, that
such Paying Agent will:
(1)
hold all sums held
by it for the payment of the principal of, premium (if any) and
interest (if any) on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein
provided;
(2)
give the Trustees
notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment of
principal of, premium (if any) or interest (if any) on the
Securities of such series; and
(3)
at any time during
the continuance of any such default, upon the written request of
the Trustees, forthwith pay to the Trustees all sums so held in
trust by such Paying Agent.
The
Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustees all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustees upon the same
trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the
Trustees, such Paying Agent shall be released from all further
liability with respect to such sums.
Except
as provided in the Securities of any series, any money deposited
with the Trustees or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of, premium (if any) or
interest (if any) on any Security of any series, or any coupon
appertaining thereto, and remaining unclaimed for two years after
such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder
of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and
all liability of the Trustees or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease;
provided, however
, that the Trustees or
such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to
the Company.
Statement
as to Compliance.
The
Company shall deliver to the Trustees, on or before 120 days after
the end of the Company’s fiscal year, an Officer’s
Certificate stating that a review of the activities of the Company
during such fiscal year has been made under the supervision of the
signing Officer with a view to determining whether the Company has
kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to such Officer, that the
Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have
occurred and is continuing, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action
the Company is taking or propose to take with respect thereto). The
Company shall deliver to the Trustees upon demand evidence in such
form as the Trustees may require as to compliance by the Company
with any condition or covenant of the Company set out herein
relating to any action required or permitted to be taken by the
Company under this Indenture or as a result of any obligation
imposed by this Indenture. For purposes of this Section 10.04, such
compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.
Payment
of Taxes and Other Claims.
The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material
taxes, assessments and governmental charges levied or imposed upon
the Company or upon the income, profits or property of the Company,
and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon any
property or assets of the Company;
provided, however
, that the Company
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Subject
to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and
franchises of the Company;
provided, however
, that the Company
shall not be required to preserve any such right or franchise if
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the
Company.
Waiver
of Certain Covenants.
The
Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition
which affects such series set forth in Sections 10.06 and
10.07, or, as specified pursuant to Section 3.01(19) for
Securities of such series, in any covenants of the Company added to
this Article Ten pursuant to Section 3.01(19) in connection
with Securities of such series, if before the time for such
compliance the Holders of at least a majority in principal amount
of all Outstanding Securities of any series, by Act of such
Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustees to
Holders of Securities of such series in respect of any such term,
provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
Applicability
of Article.
Securities of any
series which are redeemable before their Stated Maturity shall be
redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article
Eleven.
Election
to Redeem; Notice to Trustees.
The
election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustees),
notify the Trustees of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall
deliver to the Trustees such documentation and records as shall
enable the Trustees to select the Securities to be redeemed
pursuant to Section 11.03. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish to the Trustees an
Officer’s Certificate evidencing compliance with such
restriction.
Selection
by Trustees of Securities to Be Redeemed.
If less
than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustees,
from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustees shall deem
fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such
series;
provided, however
,
that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series
established pursuant to Section 3.01.
The
Trustees shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all
purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
Except
as otherwise specified as contemplated by Section 3.01, notice
of redemption shall be given in the manner provided for in
Section 1.07 not less than 30 nor more than 60 days prior
to the Redemption Date, to each Holder of Securities to be
redeemed. Failure to give notice in the manner provided in
Section 1.07 to the Holder of any Securities designated for
redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings
for the redemption of any other Securities or portion
thereof.
All
notices of redemption shall state:
(2)
the Redemption
Price and the amount of accrued interest to the Redemption Date
payable as provided in Section 11.06, if any,
(3)
if less than all
the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be
redeemed,
(4)
in case any
Security is to be redeemed in part only, the notice which relates
to such Security shall state that on and after the Redemption Date,
upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5)
that on the
Redemption Date, the Redemption Price and accrued interest (if any)
to the Redemption Date payable as provided in Section 11.06
will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(6)
the Place or Places
of Payment where such Securities, together in the case of Bearer
Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest (if any),
(7)
that the redemption
is for a sinking fund, if such is the case,
(8)
that, unless
otherwise specified in such notice, Bearer Securities of any
series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the
amount of any such missing coupon or coupons will be deducted from
the Redemption Price unless security or indemnity satisfactory to
the Company, the Trustees and any Paying Agent is furnished,
and
(9)
if Bearer
Securities of any series are to be redeemed and any Registered
Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not
subject to redemption on such Redemption Date pursuant to
Section 3.05 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
Notice
of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s
request, by the Trustees in the name and at the expense of the
Company.
Deposit
of Redemption Price.
Prior
to any Redemption Date, the Company shall deposit with a Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the
Redemption Price of, and accrued interest (if any) on, all the
Securities which are to be redeemed on that date.
Securities
Payable on Redemption Date.
Notice
of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified in the Currency in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued
interest (if any) to the Redemption Date), and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest (if any)) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption
in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest (if any), to the Redemption Date;
provided, however
, that
installments of interest on Bearer Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as
otherwise provided in Section 10.02) and, unless otherwise
specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest;
provided further
that
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant record dates according to their terms and the provisions
of Section 3.07.
If any
Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the
Company and the Trustees if there be furnished to them such
security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustees or any Paying Agent any
such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted;
provided, however
, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated
by Section 3.01, only upon presentation and surrender of those
coupons.
If any
Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium (if any) shall,
until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in such Security.
Securities
Redeemed in Part.
Any
Security which is to be redeemed only in part (pursuant to the
provisions of this Article Eleven or of Article Twelve) shall
be surrendered at a Place of Payment therefor (with, if the Company
or the Trustees so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustees duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing), and the
Company shall execute, and the applicable Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of
any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
Retirements of
Securities of any series pursuant to any sinking fund shall be made
in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 3.01 for
Securities of any series) in accordance with this Article
Twelve.
The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
“
mandatory sinking fund
payment
,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is
herein referred to as an “
optional sinking fund payment
”. If
provided for by the terms of Securities of any series, the cash
amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund
payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such
series.
Satisfaction
of Sinking Fund Payments with Securities.
Subject
to Section 12.03, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (1) deliver to
the Trustees Outstanding Securities of a such series (other than
any previously called for redemption) theretofore purchased or
otherwise acquired by the Company together in the case of any
Bearer Securities of such series with all un-matured coupons
appertaining thereto, and/or (2) receive credit for the
principal amount of Securities of such series which have been
previously delivered to the Trustees by the Company or redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series;
provided, however
, that such Securities
have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustees at the
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced
accordingly.
Redemption
of Securities for Sinking Fund.
Not
less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustees
an Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) and the portion
thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 12.02
(which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right
to make a permitted optional sinking fund payment with respect to
such series.
Such
certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver
such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid
entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Securities as
provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such
series.
Not
more than 60 days before each such sinking fund payment date
the Trustees shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in
Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the
manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and
11.07.
Prior
to any sinking fund payment date, the Company shall pay to the
Trustees or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in
Section 10.03) in cash a sum equal to any interest that will
accrue to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant
to this 12.03 Section.
Notwithstanding the
foregoing, with respect to a sinking fund for any series of
Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the
aggregate $100,000, the Trustees, unless requested by the Company,
shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking
fund shall be added to the sinking fund payment for such series to
be made in cash on the next succeeding sinking fund payment date
or, at the request of the Company, shall be applied at any time or
from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and
brokerage commissions, for which the Trustees or any Paying Agent
will be reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT
OPTION OF HOLDERS
Applicability
of Article.
Repayment of
Securities of any series before their Stated Maturity at the option
of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance
with this Article Thirteen.
Securities of any
series subject to repayment in whole or in part at the option of
the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount
thereof, together with interest (if any) thereon accrued to the
Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that, with respect to such
Securities, on or before the Repayment Date it will deposit with a
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the
principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest
(if any) on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
Securities of any
series subject to repayment at the option of the Holders thereof
will contain an “Option to Elect Repayment” form on the
reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the
“Option to Elect Repayment” form on the reverse of such
Security duly completed by the Holder (or by the Holder’s
attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of
such Security (or at such other place or places which the Company
shall from time to time notify the Holders of such Securities) not
earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such
Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the
Company.
When
Securities Presented for Repayment Become Due and
Payable.
If
Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this
Article Thirteen and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the
case may be, to be repaid shall become due and payable and shall be
paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in
the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest- bearing, cease to bear
interest and the coupons for such interest appertaining to any
Bearer Securities so to be repaid, except to the extent provided
below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall
be paid by the Company, together with accrued interest (if any) to
the Repayment Date;
provided,
however
, that coupons whose Stated Maturity is on or prior
to the Repayment Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified pursuant to
Section 3.01, only upon presentation and surrender of such
coupons;
provided further
that, in the case of Registered Securities, installments of
interest (if any) whose Stated Maturity is on or prior to the
Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.07.
If any
Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable
therefor as provided in Section 13.02 an amount equal to the
face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the
Trustees if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender
to the Trustees or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in
the preceding sentence, such Holder shall be entitled to receive
the amount so deducted;
provided,
however
, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States (except as otherwise provided in Section 10.02) and,
unless otherwise specified as contemplated by Section 3.01,
only upon presentation and surrender of those coupons.
If any
Security surrendered for repayment shall not be so repaid upon
surrender thereof for repayment, the principal amount and premium
(if any) shall, until paid, bear interest from the Repayment Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in such
Security.
Securities
Repaid in Part.
Upon
surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the applicable Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered
Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Company’s
Option to Effect Defeasance or Covenant Defeasance.
Except
as otherwise specified as contemplated by Section 3.01 for
Securities of any series, the provisions of this Article Fourteen
shall apply to each series of Securities, and the Company may, at
its option, effect defeasance of the Securities of or within a
series under Section 14.02, or covenant defeasance of or
within a series under Section 14.03 in accordance with the
terms of such Securities and in accordance with this Article
Fourteen.
Defeasance
and Discharge.
Upon
the Company’s exercise of the above option applicable to this
Section 14.02 with respect to any Securities of or within a series,
the Company shall be deemed to have been discharged from its
obligations with respect to such Securities and any related coupons
on the date the conditions set forth in Section 14.04 are
satisfied (hereinafter, “
defeasance
”). For this purpose,
such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such
Securities and any related coupons, which shall thereafter be
deemed to be “Outstanding” only for the purposes of
Section 14.05 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all of its
other obligations under such Securities and any related coupons and
this Indenture insofar as such Securities and any related coupons
are concerned (and the Trustees, at the expense of the Company,
shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such
Securities and any related coupons to receive, solely from the
trust fund described in Section 14.04 and as more fully set
forth in such Section, payments in respect of the principal of,
premium (if any) and interest (if any) on such Securities and any
related coupons when such payments are due, (B) the
Company’s obligations with respect to such Securities under
Sections 3.05, 3.06, 10.02 and 10.03, (C) the rights,
powers, trusts, duties and immunities of the Trustees hereunder and
(D) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this
Section 14.02 notwithstanding the prior exercise of its option
under Section 14.03 with respect to such Securities and any
related coupons.
Upon
the Company’s exercise of the above option applicable to this
Section 14.03 with respect to any Securities of or within a series,
the Company shall be released from its obligations under
Sections 10.05 and 10.06, and, if specified pursuant to
Section 3.01, its obligations under any other covenant, with
respect to such Securities and any related coupons on and after the
date the conditions set forth in Section 14.04 are satisfied
(hereinafter, “
covenant
defeasance
”), and such Securities and any related
coupons shall thereafter be deemed not to be
“Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but
shall continue to be deemed “Outstanding” for all other
purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Securities and any related
coupons, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of
reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute
a Default or an Event of Default under clauses (4) or (7) of
Section 5.01 or otherwise but, except as specified above, the
remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby.
Conditions
to Defeasance or Covenant Defeasance.
The
following shall be the conditions to application of either
Section 14.02 or Section 14.03 to any Securities of or
within a series and any related coupons:
(1)
The Company shall
irrevocably have deposited or caused to be deposited with either
Trustee (or another trustee satisfying the requirements of
Section 6.08 who shall agree to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an
amount (in such Currency in which such Securities and any related
coupons are then specified as payable at Stated Maturity), or
(B) Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment of principal of and premium (if
any) and interest (if any) under such Securities and any related
coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustees, to pay and discharge, and which
shall be applied by the Trustees (or another trustee satisfying the
requirements of Section 6.08 who shall agree to comply with the
provisions of this Article Fourteen) to pay and discharge,
(i) the principal of, premium (if any) and interest (if any)
on such Securities and any related coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal of, premium
(if any) or installment of interest (if any), (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Securities and any related coupons on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any related coupons, and
(iii) all amounts due the Trustees under Section 6.07;
provided
that the Trustees
shall have been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments with
respect to such Securities and any related coupons. Before such a
deposit, the Company may give to the Trustees, in accordance with
Section 11.02, a notice of its election to redeem all or any
portion of such Securities at a future date in accordance with the
terms of such Securities and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the
foregoing.
(2)
No Default or Event
of Default with respect to such Securities or any related coupons
shall have occurred and be continuing on the date of such deposit
or, insofar as clauses (5) and (6) of Section 5.01 are
concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period).
(3)
Such defeasance or
covenant defeasance shall not result in a breach or violation of,
or constitute a Default or an Event of Default under, this
Indenture or any default under any material agreement or instrument
to which the Company is a party or by which it is
bound.
(4)
In the case of an
election under Section 14.02, the Company shall have delivered
to the Trustees an Opinion of Counsel in the United States stating
that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has
been a change in the applicable United States federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities and any
related coupons will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance
and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(5)
In the case of an
election under Section 14.03, the Company shall have delivered
to the Trustees an Opinion of Counsel in the United States to the
effect that the Holders of such Securities will not recognize
income, gain or loss for United States federal income tax purposes
as a result of such covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6)
The Company shall
have delivered to the Trustees an Opinion of Counsel in Canada or a
ruling from the Canada Revenue Agency to the effect that the
Holders of such Securities will not recognize income, gain or loss
for Canadian federal, provincial or territorial income tax or other
tax purposes as a result of such defeasance or covenant defeasance,
as applicable, and will be subject to Canadian federal, provincial
or territorial income tax and other tax on the same amounts, in the
same manner and at the same times as would have been the case had
such defeasance or covenant defeasance, as applicable, not occurred
(and for the purposes of such opinion, such Canadian counsel shall
assume that Holders of such Securities include Holders who are not
resident in Canada).
(7)
The Company is not
an “insolvent person” within the meaning of the
Bankruptcy and Insolvency Act (Canada) on the date of such deposit
or at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such
period).
(8)
Notwithstanding any
other provisions of this Section 14.04, such defeasance or covenant
defeasance shall be effected in compliance with any additional or
substitute terms, conditions or limitations in connection therewith
pursuant to Section 3.01.
(9)
The Company shall
have delivered to the Trustees an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for, relating to either the defeasance under
Section 14.02 or the covenant defeasance under
Section 14.03 (as the case may be), have been complied
with.
Deposited
Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 10.03, all
money and Government Obligations (or other property as may be
provided pursuant to Section 3.01) (including the proceeds
thereof) deposited with a Trustee (or another trustee satisfying
the requirements of Section 6.08 who shall agree to comply with the
provisions of this Article Fourteen) pursuant to Section 14.04
in respect of such Securities and any related coupons shall be held
in trust and applied by such Trustee, in accordance with the
provisions of such Securities and any related coupons and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent), to
the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal, premium (if
any) and interest (if any) on such Securities but such money need
not be segregated from other funds except to the extent required by
law.
Unless
otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in
Section 14.04(1) has been made, (a) the Holder of a
Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of
such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 14.04(1) has been made
in respect of such Security, or (b) a Conversion Event occurs
as contemplated in Section 3.12(d) or 3.12(e) or by the terms
of any Security in respect of which the deposit pursuant to
Section 14.04(1) has been made, the indebtedness represented
by such Security and any related coupons shall be deemed to have
been, and will be, fully discharged and satisfied through the
payment of the principal of, premium (if any) and interest (if any)
on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on
the applicable Market Exchange Rate for such Currency in effect on
the third Business Day prior to each payment date, except, with
respect to a Conversion Event, for such Currency in effect (as
nearly as feasible) at the time of the Conversion
Event.
The
Company shall pay and indemnify such Trustee against any tax, fee
or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 14.04 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Securities and any related
coupons.
Anything in this
Article Fourteen to the contrary notwithstanding, such Trustee
shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in
Section 14.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to such Trustee, are in excess of
the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article Fourteen.
If a
Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.05 by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated
as though no deposit had occurred pursuant to Section 14.02 or
14.03, as the case may be, until such time as such Trustee or
Paying Agent is permitted to apply all such money in accordance
with Section 14.05;
provided,
however
, that if the Company makes any payment of principal
of, premium (if any) or interest (if any) on any such Security or
any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment
from the money held by such Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Purposes
for Which Meetings May Be Called.
If
Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article Fifteen to make,
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such
series.
Call,
Notice and Place of Meetings.
(1)
The Trustees may at
any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 15.01, to be held at such
time and at such place in The City of New York, in Toronto or in
London as the Trustees shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided
for in Section 1.07, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(2)
In case at any time
the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustees to call a meeting of the
Holders of Securities of such series for any purpose specified in
Section 15.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the
Trustees shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may
determine the time and the place in The City of New York, in
Toronto or in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in
paragraph (1) of this Section 15.02.
Persons
Entitled to Vote at Meetings.
To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder of Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustees and their
counsel and any representatives of the Company and its
counsel.
The
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series;
provided, however
, that, if any action
is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders
of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days
as determined by the chair of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chair of
the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 15.02(a), except that such notice need
be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a
quorum.
Subject
to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a
quorum for the taking of any action set forth in the notice of the
original meeting.
Except
as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series who
have casted their votes;
provided,
however
, that, except as limited by the proviso to
Section 9.02, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by
the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of
such series.
Any
resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section
15.04 shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the
foregoing provisions of this Section 15.04, if any action is to be
taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities
affected thereby, or of the Holders of such series and one or more
additional series:
(i)
there shall be no
minimum quorum requirement for such meeting; and
(ii)
the principal
amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(1)
Notwithstanding any
provisions of this Indenture, the Trustees may make such reasonable
regulations as they may deem advisable for any meeting of Holders
of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning
the conduct of the meeting as they shall deem appropriate. Except
as otherwise permitted or required by any such regulations, the
holding of Securities shall be proved in the manner specified in
Section 1.05 and the appointment of any proxy shall be proved
in the manner specified in Section 1.05 or by having the
signature of the person executing the proxy witnessed or guaranteed
by any trust company, bank or banker authorized by
Section 1.05 to certify to the holding of Bearer Securities.
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 1.05 or other
proof.
(2)
The Trustees shall,
by an instrument in writing appoint a temporary chair of the
meeting, unless the meeting shall have been called by the Company
or by Holders of Securities as provided in Section 15.02(b),
in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like
manner appoint a temporary chair. A permanent chair and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(3)
At any meeting each
Holder of a Security of such series or proxy shall be entitled to
one vote for each $1,000 principal amount of Outstanding Securities
of such series held or represented by him (determined as specified
in the definition of “Outstanding” in
Section 1.01);
provided,
however
, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding
and ruled by the chair of the meeting to be not Outstanding. The
chair of the meeting shall have no right to vote, except as a
Holder of a Security of such series or a proxy.
(4)
Any meeting of
Holders of Securities of any series duly called pursuant to
Section 15.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
Counting
Votes and Recording Action of Meetings.
The
vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal
amounts and serial numbers, if any, of the Outstanding Securities
of such series held or represented by them. The permanent chair of
the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was given as
provided in Section 15.02 and, if applicable,
Section 15.04. Each copy shall be signed and verified by the
affidavits of the permanent chair and secretary of the meeting and
one such copy shall be delivered to the Company, and another to the
Trustees to be preserved by the Trustees, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above
written.
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ELDORADO
GOLD CORPORATION
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By: ___________________________________
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Name:
_________________________________
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Title:
__________________________________
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___________________________________
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as
U.S. Trustee
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By:
___________________________________
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Name:
_________________________________
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Title:
__________________________________
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By:
___________________________________
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Name:
_________________________________
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Title:
__________________________________
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___________________________________
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as
Canadian Trustee
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By:
___________________________________
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Name:
_________________________________
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Title:
Authorized Signing Officer
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By:
___________________________________
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Name:
_________________________________
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Title:
Authorized Signing Officer
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EXHIBIT A-1
FORM OF
CERTIFICATE TO BE GIVEN BY
PERSON
ENTITLED TO RECEIVE BEARER SECURITY
OR TO
OBTAIN INTEREST PAYABLE PRIOR
TO THE
EXCHANGE DATE
CERTIFICATE
ELDORADO
GOLD CORPORATION
_____%
Notes due _________________
This is
to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account
(i) are owned by any person(s) that is not a citizen or
resident of the United States; a corporation or partnership
(including any entity treated as a corporation or partnership for
United States federal income tax purposes) created or organized in
or under the laws of the United States, any state thereof or the
District of Columbia unless, in the case of a partnership, United
States Treasury Regulations provide otherwise; any estate whose
income is subject to United States federal income tax regardless of
its source; or a trust if (A) a United States court can
exercise primary supervision over the trust’s administration
and one or more United States persons are authorized to control all
substantial decisions of the trust or (B) it was in existence
on August 20, 1996 and has a valid election in effect under
applicable United States Treasury Regulations to be treated as a
United States person (“United States persons(s)”),
(ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions
(financial institutions, as defined in United States. United States
Treasury Regulation Section 1.165-12(c)(1)(v) are herein
referred to as “financial institutions”) purchasing for
their own account or for resale, or (b) United States
person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities
through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through
its agent, that you may advise Eldorado Gold Corporation or its
agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)), and, in addition,
if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described
in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used
herein, “United States” means the United States of
America (including the states and the District of Columbia); and
its “possessions” include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We
undertake to advise you promptly in writing on or prior to the date
on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in
accordance with your operating procedures if any applicable
statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification
applies as of such date.
This
certificate excepts and does not relate to U.S. $__________ of such
interest in the above-captioned Securities in respect of which we
are not able to certify and as to which we understand an exchange
for an interest in a permanent global security or an exchange for
and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so
certify.
We
understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with
which this certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
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Dated:__________________
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[To be dated no
earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
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[Name
of Person Making Certification]
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By:
___________________________________
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Name:
_________________________________
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Title:
__________________________________
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EXHIBIT A-2
FORM OF
CERTIFICATE TO BE GIVEN BY THE DEPOSITARY
IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE
PRIOR TO THE EXCHANGE DATE
CERTIFICATE
ELDORADO
GOLD CORPORATION
_____%
Notes due _________________
This is
to certify that based solely on written certifications that we have
received in writing or by electronic transmission from each of the
persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as
of the date hereof, U.S. $__________ principal amount of the
above-captioned Securities (i) is owned by any person(s) that
is not a citizen or resident of the United States; a corporation or
partnership (including any entity treated as a corporation or
partnership for United States federal income tax purposes) created
or organized in or under the laws of the United States, any state
thereof or the District of Columbia unless, in the case of a
partnership, United States Treasury Regulations provide otherwise;
any estate whose income is subject to United States federal income
tax regardless of its source; or a trust if (A) a United
States court can exercise primary supervision over the
trust’s administration and one or more United States persons
are authorized to control all substantial decisions of the trust or
(B) it was in existence on August 20, 1996 and has a
valid election in effect under applicable United States Treasury
Regulations to be treated as a United States person (“United
States person(s)”), (ii) is owned by United States
person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulation Section 1.165-12(c)(1)(v)
are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its
agent, that we may advise Eldorado Gold Corporation or its agent
that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period
(as defined in United States Treasury Regulation
Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect,
that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used
herein, “United States” means the United States of
America (including the states and the District of Columbia); and
its “possessions” include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We
further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any
portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date
hereof.
We
understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with
which this certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
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Dated:_____________
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[To be dated no
earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
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[INSERT NAME OF
DEPOSITARY]
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By:
___________________________________
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Name:
_________________________________
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Title:
__________________________________
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