<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 31, 1997
ECHO BAY MINES LTD.
(Exact name of registrant as specified in its charter)
Incorporated under the
laws of Canada 1-8542 NONE
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
6400 SOUTH FIDDLER'S GREEN CIRCLE, SUITE 1000
ENGLEWOOD, COLORADO 80111-4957
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 714-8600
<PAGE> 2
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
4.1 Indenture dated March 27, 1997 between Echo Bay Mines Ltd.
and Bankers Trust Company
4.2 First Supplemental Indenture dated March 27, 1997 between
Echo Bay Mines Ltd. and Bankers Trust Company
4.3 Global Security for Echo Bay Mines Ltd. 11% Capital Securities
due 2027, dated March 27, 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 31, 1997 ECHO BAY MINES LTD.
(Registrant)
By: /s/ Raymond W. Jenner
Raymond W. Jenner
Vice President and Treasurer
-2-
<PAGE> 3
EXHIBIT INDEX
Exhibit
Number Exhibit Description
- ------- -------------------
4.1 Indenture dated March 27, 1997 between
Echo Bay Mines Ltd. and Bankers Trust Company
4.2 First Supplemental Indenture dated March 27, 1997 between
Echo Bay Mines Ltd. and Bankers Trust Company
4.3 Global Security for Echo Bay Mines Ltd. 11% Capital Securities
due 2027, dated March 27, 1997
<PAGE> 1
EXHIBIT 4.1
ECHO BAY MINES LTD.
ISSUER
TO
BANKERS TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF MARCH 27, 1997
SUBORDINATED DEBT SECURITIES
<PAGE> 2
ECHO BAY MINES LTD.
Issuer
Certain Sections of this Indenture relating to
Section 310 through 318, inclusive,
of the Trust Indenture Act of 1939
- ---------------
Note: This reconciliation shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
Section 310 . . . . . . . . . . . . . . . . 6.9
(a)(1) . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . 6.8
(c) . . . . . . . . . . . . . . . . Not Applicable
. . . . . . . . . . . . . . . . 6.10
Section 311 . . . . . . . . . . . . . . . . 6.13
(a) . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . 13
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 312 . . . . . . . . . . . . . . . . 7.1
(a) . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . 7.2(a)
(b) . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . 7.2(c)
Section 313 . . . . . . . . . . . . . . . . 7.3(a)
(a) . . . . . . . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . . . 7.3(b)
Section 314 . . . . . . . . . . . . . . . . 7.4
(a) . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . 1.1
. . . . . . . . . . . . . . . . 10.4
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 1.2
Section 315 . . . . . . . . . . . . . . . . 6.1
(a) . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . 5.14
Section 316 . . . . . . . . . . . . . . . . 1.1
(a) . . . . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . 5.2
. . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . 1.4(c)
Section 317 . . . . . . . . . . . . . . . . 5.3
(a)(1) . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . 10.3
Section 318 . . . . . . . . . . . . . . . . 1.7
(a) . . . . . . . . . . . . . . . . 1.7
</TABLE>
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Note: This reconciliation shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Compliance Certificates and Opinions . . . . . . . . . . . 9
1.3 Form of Documents Delivered to Trustee . . . . . . . . . . 10
1.4 Acts of Holders; Record Dates . . . . . . . . . . . . . . 10
1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . 12
1.6 Notice to Holders: Waiver . . . . . . . . . . . . . . . . 13
1.7 Conflict with Applicable Legislation . . . . . . . . . . . 13
1.8 Effect of Headings and Table of Contents . . . . . . . . . 13
1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . 13
1.10 Separability Clause . . . . . . . . . . . . . . . . . . . 13
1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . 14
1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . 14
1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2
SECURITY FORMS
2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . 14
2.2 Form of Face of Security . . . . . . . . . . . . . . . . . . 15
2.3 Form of Reverse of Security . . . . . . . . . . . . . . . . 17
2.4 Form of Legend for Global Securities . . . . . . . . . . . . 23
2.5 Form of Trustee's Certificate of Authentication . . . . . . 24
ARTICLE 3
THE SECURITIES
3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . 24
3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Execution, Authentication, Delivery and Dating . . . . . . . 28
3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . 29
3.5 Registration, Registration of Transfer and Exchange . . . . 30
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- i -
<PAGE> 5
<TABLE>
<S> <C> <C>
3.6 Mutilated, Destroyed, Lost and Stolen Securities . . . . . . 31
3.7 Payment of Interest; Interest Rights Preserved . . . . . . . 32
3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 34
3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 34
3.10 Computation of Interest . . . . . . . . . . . . . . . . . . 35
ARTICLE 4
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . 35
4.2 Application of Trust Money . . . . . . . . . . . . . . . . . 36
ARTICLE 5
REMEDIES
5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 37
5.2 Acceleration of Maturity; Rescission and Annulment . . . . . 39
5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . 42
5.5 Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.6 Application of Money Collected . . . . . . . . . . . . . . . 42
5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 43
5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . 43
5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . 44
5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . 44
5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 44
5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . 44
5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 45
5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 46
5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . 46
ARTICLE 6
THE TRUSTEE
6.1 Certain Duties and Responsibilities . . . . . . . . . . . . 46
6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 48
6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . 48
6.4 Not Responsible for Recitals or Issuance of Securities . . . 49
6.5 May Hold Securities . . . . . . . . . . . . . . . . . . . . 49
6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . 50
6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . 50
6.8 Disqualification; Conflicting Interests . . . . . . . . . . 50
6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . 51
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- ii -
<PAGE> 6
<TABLE>
<S> <C> <C> <C>
6.10 Resignation and Removal; Appointment of Successor . . . . . 51
6.11 Acceptance of Appointment by Successor . . . . . . . . . . . 53
6.12 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . 54
6.13 Preferential Collection of Claims Against Company . . . . . 54
6.14 Appointment of Authenticating Agent . . . . . . . . . . . . 54
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 Company to Furnish Trustee Names and Addresses of Holders . 56
7.2 Preservation of Information; Communications to Holders . . . 57
7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 57
7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 Company May Consolidate, Etc., Only on Certain Terms . . . . 58
8.2 Successor Substituted . . . . . . . . . . . . . . . . . . . 59
ARTICLE 9
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Holders . . . . . 59
9.2 Supplemental Indentures with Consent of Holders . . . . . . 60
9.3 Execution of Supplemental Indentures . . . . . . . . . . . . 62
9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . 62
9.5 Conformity with Applicable Legislation . . . . . . . . . . . 62
9.6 Reference in Securities to Supplemental Indentures . . . . . 62
ARTICLE 10
COVENANTS
10.1 Payment of Principal, Premium and Interest . . . . . . . . . 62
10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . 63
10.3 Money for Securities Payments to Be Held in Trust . . . . . 63
10.4 Statement by Officers as to Default . . . . . . . . . . . . 65
10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.6 Maintenance of Properties . . . . . . . . . . . . . . . . . 66
10.7 Payment of Taxes and Other Claims . . . . . . . . . . . . . 66
10.8 Payment of Additional Amounts . . . . . . . . . . . . . . . 66
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- iii -
<PAGE> 7
<TABLE>
<S> <C> <C>
10.9 Waiver of Certain Covenants . . . . . . . . . . . . . . . . 67
10.10 Reports to Holders . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 11
REDEMPTION OF SECURITIES
11.1 Applicability of Article . . . . . . . . . . . . . . . . . . 68
11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . 68
11.3 Selection by Trustee of Securities to Be Redeemed . . . . . 68
11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . 69
11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . 70
11.6 Securities Payable on Redemption Date . . . . . . . . . . . 70
11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . 71
ARTICLE 12
SINKING FUNDS
12.1 Applicability of Article . . . . . . . . . . . . . . . . . . 71
12.2 Satisfaction of Sinking Fund Payments with Securities . . . 71
12.3 Redemption of Securities for Sinking Fund . . . . . . . . . 71
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
13.1 Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.2 Defeasance and Discharge . . . . . . . . . . . . . . . . . . 71
13.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 73
13.4 Conditions to Defeasance or Covenant Defeasance . . . . . . 73
13.5 Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 75
13.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE 14
CONVERSION OF SECURITIES
14.1 Applicability; Conversion Privilege and Conversion Price . . 76
14.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . 77
14.3 Fractions of Shares . . . . . . . . . . . . . . . . . . . . 78
14.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . 78
14.5 Notice of Adjustments of Conversion Price . . . . . . . . . 84
14.6 Notice of Certain Corporation Action . . . . . . . . . . . . 84
14.7 Company to Reserve Common Shares . . . . . . . . . . . . . . 85
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- iv -
<PAGE> 8
<TABLE>
<S> <C> <C>
14.8 Taxes on Conversion . . . . . . . . . . . . . . . . . . . 85
14.9 Covenant as to Common Shares . . . . . . . . . . . . . . . . 86
14.10 Company as Holder of Converted Securities . . . . . . . . . 86
14.11 Provisions in Case of Consolidation, Merger or Sale
of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 86
14.12 Responsibility of Trustee and Conversion Agent . . . . . . . 87
ARTICLE 15
SUBORDINATION
15.1 Securities Subordinate to Senior Indebtedness . . . . . . . 87
15.2 Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . 88
15.3 Prior Payment to Senior Indebtedness upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 89
15.4 No Payment When Senior Indebtedness in Default . . . . . . . 89
15.5 Payment Permitted If No Default . . . . . . . . . . . . . . 90
15.6 Subrogation to Rights of Holders of Senior Indebtedness . . 90
15.7 Provisions Solely to Define Relative Rights and Subject to
Applicable Laws . . . . . . . . . . . . . . . . . . . . . . 90
15.8 Trustee to Effectuate Subordination . . . . . . . . . . . . 91
15.9 No Waiver of Subordination Provisions . . . . . . . . . . . 91
15.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . 91
15.11 Reliance on Judicial Order or Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
15.12 Trustee Not Fiduciary for Holders of Senior Indebtedness . . 92
15.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights . . . . . . . . . . . . . . 93
15.14 Article Applicable to Paying Agents . . . . . . . . . . . . 93
15.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . 93
15.16 Rescission . . . . . . . . . . . . . . . . . . . . . . . . . 93
15.17 Certain Conversions or Exchanges Deemed Payment . . . . . . 93
ARTICLE 16
SUBMISSION TO JURISDICTION
16.1 Agent for Service; Submission to Jurisdiction . . . . . . . 94
16.2 Waiver of Immunities . . . . . . . . . . . . . . . . . . . . 94
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- v -
<PAGE> 9
INDENTURE, dated as of March 27, 1997, between ECHO BAY MINES LTD., a
corporation duly incorporated and existing under the laws of Canada, having its
registered office at 2900 ManuLife Place, 10180 - 101 Street, Edmonton,
Alberta, T5J 3V5 (herein called the "Company"), and BANKERS TRUST COMPANY, a
New York corporation, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities") to be issued by the Company, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times, to be
issued in one or more series and to have such other provisions as shall be
fixed as hereinafter provided.
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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1 DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE> 10
-2-
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in Canada as in effect on the date of
original issuance of the relevant series of Securities, and
applied on a basis consistent with prior periods; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"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.
"APPLICABLE LEGISLATION" means, with respect to any series of Securities which
was required to be registered under the Securities Act, the Trust Indenture
Act, and with respect to any series of Securities which was distributed
pursuant to a prospectus filed with the Ontario Securities Commission, the
Business Corporations Act and with respect to each series of Securities, the
Canada Business Corporations Act, unless the Company has received an exemption
with respect to a particular series of Securities pursuant to subsection 82(3)
of the Canada Business Corporations Act.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee pursuant to
Section 6.14 to act on behalf of the Trustee to authenticate Securities of one
or more series.
<PAGE> 11
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"BOARD OF DIRECTORS" means, when used with reference to the Company, the board
of directors of the Company, or any committee of the board of directors of the
Company empowered to act for the Company with respect to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS CORPORATIONS ACT" means the Business Corporations Act (Ontario) as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Business Corporations Act (Ontario) is amended after such
date, "Business Corporations Act" means, to the extent required by any such
amendments, the Business Corporations Act (Ontario), as so amended.
"BUSINESS DAY" means any day other than a Saturday, Sunday or any other day on
which banking institutions in New York City are permitted or required by
applicable law to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"CANADA BUSINESS CORPORATIONS ACT" means the Canada Business Corporations Act
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Canada Business Corporations Act is amended
after such date, "Canada Business Corporations Act" means, to the extent
required by any such amendments, the Canada Business Corporations Act, as so
amended.
"COMMISSION" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON SHARES" or "COMMON SHARES OF THE COMPANY" means the Common Shares of
the Company and the shares of any other class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of 3.1(q) and Section 14.11, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Shares
in the articles of the Company at the date of this instrument or shares of any
class or classes
<PAGE> 12
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resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; provided, however,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassification bears to the total number of shares of all such classes
resulting from all such reclassifications.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed in
the name of the Company by its President or a Vice President, and by its
Treasurer or its Secretary, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered which
office at the date of the execution of this Indenture is located at Four Albany
Street, New York, New York, 10006 or at any other time at such other address as
the Trustee may designate from time to time by notice to the Company.
"CORPORATION" means a corporation, association, company, joint-stock company or
business trust.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.3.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEFEASANCE" has the meaning specified in Section 13.2.
"DEFEASIBLE SERIES" has the meaning specified in Section 13.1.
"DEPOSITARY" means, with respect to Securities of any series issuable in whole
or in part in the form of one or more Global Securities, a clearing agency
designated to act as Depositary for such Securities as contemplated by Section
3.1, that is registered under the Exchange Act if the Securities of such series
were required to be registered under the Exchange Act, and that has been
designated as a recognized
<PAGE> 13
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clearing agency under applicable Canadian securities legislation if the
Securities of such series were distributed by the Company pursuant to a
prospectus filed with Canadian securities regulatory authorities.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
"GLOBAL SECURITY" means a Security that evidences all or part of the Securities
of any series and is authenticated and delivered to, and registered in the name
of, the Depositary for such Securities or a nominee thereof.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct full faith and
credit obligations of the government which issued the currency in which the
Securities of a particular series are denominated and in which payment of
principal and interest are to be made or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the United States Securities Act of 1933, as amended) as custodian with respect
to any such Government Obligation or a specific payment of principal of or
interest on account of the holder of such depository receipt from any amount
received by the custodian in respect of such Government Obligation or the
specific payment of principal of or interest on such Government Obligation
evidenced by such depository receipt.
"HOLDER" means a Person in whose name a Security is registered in the Security
Register.
"INCOME TAX ACT" means the Income Tax Act (Canada) as in force as at the date
as of which this instrument was executed; provided, however, that in the event
the Income Tax Act (Canada) is amended after such date, "Income Tax Act" means,
to the extent required by such amendment, the Income Tax Act (Canada), as so
amended.
"INDENTURE" means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes
<PAGE> 14
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of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term "Indenture" shall
also include the terms of the particular series of Securities established as
contemplated by Section 3.1.
"INTEREST PAYMENT DATE" means, when used with respect to any Security, the
Stated Maturity of an instalment of interest on such Security.
"MATURITY" means, when used with respect to any Security, the date on which the
principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind specified in Section
5.1(d).
"OFFICERS' CERTIFICATE" means, when used with reference to the Company, a
certificate signed on behalf of the Company by any one of the Chairman of the
Board, the President or any Vice President of the Company, and by any one of
the Treasurer, the Controller, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, chief financial or principal accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel for
the Company (and who may be an employee of the Company).
"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 5.2.
"OUTSTANDING", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with
the
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Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(c) Securities as to which Defeasance has been effected pursuant to
Section 13.2; and
(d) Securities which have been replaced pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by 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, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall
be the amount of the principal thereof (excluding premium or penalty, if any)
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 5.2, (ii) the
principal amount of a Security denominated in one or more foreign currencies or
currency units shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 3.1 on the date of original issuance of
such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security, (iii) if the principal amount payable at Stated Maturity of any
Security is not determinable upon original issuance, the principal amount of
such Security that shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 3.1, 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 Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to the presence of
a quorum, only Securities which
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a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the 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 of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the principal
of or any premium or interest on any Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture, trust,
association, company, joint-stock company, business trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PLACE OF PAYMENT" means, when used with respect to the Securities of any
series, the place or places where the principal of and any premium and interest
on the Securities of that series are payable as specified as contemplated by
Section 3.1.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PROCEEDING" has the meaning specified in Section 15.2.
"REDEMPTION DATE" means, when used with respect to any Security to be redeemed,
the date fixed for such redemption by or pursuant to this Indenture;
"REDEMPTION PRICE" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date on
the Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any officer
within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or Assistant
Treasurer or
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any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular
subject.
"SECURITIES ACT" means the United States Securities Act of 1933 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the United States Securities Act of 1933 is amended after such date,
"Securities Act" means, to the extent required by any such amendments, the
United States Securities Act of 1933, as so amended.
"SECURITIES PAYMENT" has the meaning specified in Section 15.2.
"SECURITY" or "SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Security or Securities authenticated
and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 3.5.
"SENIOR INDEBTEDNESS" means, with respect to the Company, (i) the principal
(including redemption payments), premium, if any, interest (including, without
limitation, interest accruing on or after a bankruptcy or other similar event,
whether or not an allowed claim therein) and other payment obligations in
respect of (a) indebtedness of the Company for money borrowed and (b)
indebtedness evidenced by securities, debentures, bonds, notes or other similar
instruments issued by the Company, including any such securities issued under
any deed, indenture or other instrument to which the Company is a party
(including, for the avoidance of doubt, indentures pursuant to which
subordinated debentures have been or may be issued) and which do not contain
express terms providing that the Indebtedness evidenced thereby is subordinate
to or ranks pari passu with the Securities, (ii) all capital lease obligations
of the Company, (iii) all obligations of the Company issued or assumed as the
deferred purchase price of property, all conditional sale obligations of the
Company, all hedging agreements and agreements of a similar nature (including
interest rate swap agreements and commodity futures contracts) thereto and all
agreements relating to any such agreements, and all obligations of the Company
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business), (iv) all obligations of the
Company for the reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction, (v) all obligations
of the type referred to in
<PAGE> 18
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clauses (i) through (iv) above of other persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise and (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except for (a) any
such indebtedness or other obligation that contains express terms, or is issued
under a deed, indenture or other instrument which contains express terms,
providing that it is subordinate to or ranks pari passu with the Securities,
and (b) any indebtedness between the Company and its affiliates, unless such
indebtedness has been assigned as security to the holders of other Senior
Indebtedness. Senior Indebtedness shall continue to be Senior Indebtedness and
be entitled to the benefits of the subordination provisions of the Indenture
irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY" means, when used with respect to any Security or any
instalment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"SUBSIDIARY" means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is
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more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"VICE PRESIDENT" means, when used with respect to the Company or the Trustee,
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
1.2 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture 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 condition
or covenant provided for in this Indenture (including certificates provided for
in Section 10.4) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein related thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
<PAGE> 20
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1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers 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.
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.
1.4 ACTS OF HOLDERS; RECORD DATES
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1)
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conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved 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 his 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 Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) 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 Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, where the series of Securities was required to be
registered under the Securities Act, and in the circumstances
permitted by the securities legislation of the provinces of
Canada and the policies of Canadian securities regulatory
authorities, where the series of Securities was distributed
pursuant to a prospectus filed with Canadian securities
regulatory authorities, fix any day as the record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not
set by the Company prior to the first solicitation of a Holder of
Securities of such series made by any Person in respect of any
such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the
30th
<PAGE> 22
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day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 7.1) prior to such
first solicitation or vote, as the case may be. With regard to
any record date for action to be taken by the Holders of one or
more series of Securities, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action. With
regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action,
whether or not such Holders remain Holders after such record
date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed
agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date
after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may,
on one or more occasions at its option, extend such date to any
later date. Nothing in this paragraph shall prevent any Holder
(or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any
time, contrary to or different from, any action given or taken,
or purported to have been given or taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing the Trust Indenture Act or the
securities legislation of the provinces of Canada and the
policies of Canadian securities regulatory authorities, the
Company shall not set a record date for, and the provisions of
this paragraph shall not apply with respect to, any action to be
given or taken by Holders pursuant to Sections 5.1, 5.2 or 5.12.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such
principal amount.
<PAGE> 23
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1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by 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 Trustee at its Corporate Trust Office,
Attention: Corporate Market Services--4th Floor; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Company, addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee
by the Company.
1.6 NOTICE TO HOLDERS: WAIVER
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
<PAGE> 24
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1.7 CONFLICT WITH APPLICABLE LEGISLATION
If any provision hereof limits, qualifies or conflicts with a provision
of any Applicable Legislation that is required under such legislation to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of any
Applicable Legislation that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
1.8 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.
1.9 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
1.10 SEPARABILITY CLAUSE
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent, Security Registrar and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
1.12 GOVERNING LAW
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of laws.
<PAGE> 25
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1.13 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities (other than a provision of
the Securities of any series which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
ARTICLE 2
SECURITY FORMS
2.1 FORMS GENERALLY
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to Board Resolutions of the Board of Directors of the Company 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 officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities
of any series is established by action taken pursuant to such Board
Resolutions, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
<PAGE> 26
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2.2 FORM OF FACE OF SECURITY
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
ECHO BAY MINES LTD.
__________________________________
No. _______ U.S. $_______________
ECHO BAY MINES LTD., a corporation duly incorporated and existing under
the laws of Canada (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________________________, or
registered assigns, the principal sum of _____________________________________
[United States] Dollars on ________________________ [if the Security is to bear
interest prior to Maturity, insert -- , and to pay interest thereon from
_________________________ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on
________________ and _______________ in each year, commencing
_________________, at the rate of ____________% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert -- , and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of _____% per annum on any overdue principal and premium and on any
overdue instalment of interest], from the dates such amounts are due until they
are paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _________ or
__________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to
<PAGE> 27
- 19 -
Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _________% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of principal of (and premium, if any) and [if applicable, insert
- -- any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in ______________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --];
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 28
- 20 -
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
ECHO BAY MINES LTD.
By:
----------------------------------
Attest:
- -----------------------------------
2.3 FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of __________, 199__ (herein called
the "Indenture"), among the Company and _____________, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate amount to U.S.
$__________].
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time on or before the close of business on ____________________,
or in case this Security or a portion hereof is called for redemption, then in
respect of this Security or such portion hereof until and including, but
(unless the Company defaults in making the payment due upon redemption) not
after, the close of business on the 10th calendar day before the Redemption
Date, to convert this Security (or any portion of the principal
<PAGE> 29
- 21 -
amount hereof which is U.S. $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and non-assessable
Common Shares (calculated as to each conversion to the nearest 1/100 of a
share) at an initial Conversion Price per Common Share equal to U.S. $_________
per each Common Share (or at the current adjusted Conversion Price if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency in ______________________, accompanied by written
notice to the Company that the Holder hereof elects to convert this Security,
or if less than the entire principal amount hereof is to be converted, the
portion hereof to be converted, and, in such case such surrender shall be made
during the period from the close of business on any Regular Record Date next
preceding any Interest Payment Date (unless this Security or the portion
thereof being converted has been called for redemption on a Redemption Date
within such period), also accompanied by payment in New York Clearing House or
other funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of this Security
then being converted. Subject to the aforesaid requirement for payment and, in
the case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security) of record at such
Regular Record Date to receive an instalment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made
on conversion for interest accrued hereon or for dividends on the Common Shares
issued on conversion. No fractions or shares or scrip representing fractions
of shares will be issued on conversion, but instead of any fractional interest
the Company shall pay a cash adjustment as provided in the Indenture. The
Conversion Price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a part or the transfer of substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of
the number of Common Shares into which this Security might have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of Common Shares failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing
shares). Adjustments in the Conversion Price of less than one percent of such
price will not be required, but any adjustment that would otherwise be required
to be made
<PAGE> 30
- 22 -
will be carried forward and taken into account in the computation of any
subsequent adjustment.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
- - (1) on __________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time
[if applicable, insert -- on or after __________, 199__], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): if redeemed [if
applicable, insert -- on or before ________, __%, and if redeemed] during the
12 month period beginning _____ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ----------------- ----------------- ------------------- -------------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _____ in any year
commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after _____], as a whole or
<PAGE> 31
- 23 -
in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: if redeemed
during the 12-month period beginning _____ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price Redemption Otherwise
for Redemption Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
- -------------------- -------------------------- ---------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on _____ in each year beginning with the year _____ and ending
with the year _____ of [if applicable, insert -- not less than U.S. $_____
("mandatory sinking fund") and not more than] U.S. $_____ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert --
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert -- mandatory] sinking fund payments otherwise required to be
made [if applicable, insert -- in the inverse order in which they become due].]
<PAGE> 32
- 24 -
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption [if applicable, insert -- or conversion] of this Security
in part only, a new Security or Securities of this series and of like tenor for
the unredeemed [if applicable, insert -- or unconverted] portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If subordinated indebtedness, insert -- The indebtedness evidenced by
this Security is, to the extent provided in the Indenture, (i) subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness and (ii) pari passu with all other subordinated indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take action as may be necessary or appropriate to effectuate
the subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [(1) the entire indebtedness of this Security or (2)]
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected
<PAGE> 33
- 25 -
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of Securities of such series, to waive compliance by the Company with
certain past provisions of the Indenture and certain defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange here for or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
[If the Security is issued on a subordinated basis, insert -- Subject to
the rights of holders of Senior Indebtedness, as set forth in the Indenture, no
other reference herein to the Indenture and no other provision of this Security
or of the Indenture shall alter or impair the obligations of the Company, which
are unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin and currency, herein
prescribed [if applicable, insert -- or to convert this Security as so provided
in the Indenture].]
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the
<PAGE> 34
- 26 -
Company in any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If applicable, insert --
[FORM OF CONVERSION NOTICE]
To: ECHO BAY MINES LTD.
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion hereof (which is U.S. $1,000 or
an integral multiple there) below designated, into Common Shares of Echo Bay
Mines Ltd., in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities, representing any
<PAGE> 35
- 27 -
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If shares are
to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. Any
amount required to be paid by the undersigned on account of interest
accompanies this Security.
Dated:
Fill in for registration
of Common Shares
and Securities if to be
issued otherwise than
to the registered holder.
Principal Amount to be converted
- ---------------------------------- (in an integral multiple of U.S.
Name $1,000, if less than all):
- ---------------------------------- U.S. $
Address
- ---------------------------------- -----------------------------------
(Please print name and address, Signature
including zip/postal code number)
SOCIAL SECURITY OR OTHER [SIGNATURE GUARANTEED -- required
TAXPAYER IDENTIFYING only if Common Shares and Securities
NUMBER are to be issued and delivered to
other than the registered holder]
2.4 FORM OF LEGEND FOR GLOBAL SECURITIES
Unless otherwise specified as contemplated by Section 3.1 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or
a nominee thereof. This Security may not be transferred to, or
registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such
<PAGE> 36
- 28 -
transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, this
Security shall be a Global Security subject to the foregoing, except in
such limited circumstances.
2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[Name of Trustee],
As Trustee
By:
-------------------------------
Authorized Signatory
ARTICLE 3
THE SECURITIES
3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
All Securities of each series under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of
the authentication and delivery or Stated Maturity of the Securities of such
series. There shall be established in or pursuant to Board Resolutions of the
Company and, subject to Section 3.3, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company,
<PAGE> 37
- 29 -
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series);
(b) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to section 3.4, 3.5, 3.6,
9.6 or 11.7 and except for any Securities which, pursuant to
section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person to whom any interest on a 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;
(d) the date or dates on which the principal of the Securities of the
series is payable;
(e) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates
are determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest
shall be payable on any Securities and the Regular Record Date
for any interest payable on any Interest Payment Date, and the
basis upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(f) the place or places where the principal of and any premium and
interest on the Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall
be evidenced;
<PAGE> 38
- 30 -
(h) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, purchase
fund or analogous obligation or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(i) if other than denominations of U.S. $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(j) the currency, currencies or currency unit or units in which the
Securities of such series shall be denominated and in which
payment of the principal of and any premium and interest on any
Securities of such series shall be payable if other than the
currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding"
in Section 1.1;
(k) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined by
reference to an index, formula or other method, including,
without limitation, such method based on (i) currency, currencies
or currency units other than that in which the Securities of such
series are payable, (ii) changes in the price of one or more
other securities or groups or indices of securities, or (iii)
changes in the prices of one or more commodities or groups or
indexes of commodities or any combination of the foregoing, the
manner in which such amounts shall be determined and any
commodities, currencies, currency units or indices, value, rate
or price relevant to such determination;
(l) if the principal of or any premium or interest on any Securities
of the series are to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units
other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall
be payable, and the period or periods within which, and the terms
and conditions upon which, such election is to be
<PAGE> 39
- 31 -
made and the amount so payable or the manner in which such amount
shall be determined;
(m) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(n) if the principal amount payable at the Stated Maturity of any
Securities of the series is not determinable upon original
issuance thereof, the amount which shall be deemed to be the
principal amount of such Securities for any other purpose
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date (or, in
any such case, the manner in which such principal amount shall be
determined);
(o) if applicable, that the Securities of the series shall be subject
to either or both of Defeasance or Covenant Defeasance as
provided in Article 13; provided that no series of Securities
that is convertible into or exchangeable for any other securities
pursuant to Section 3.1(q) shall be subject to Defeasance
pursuant to Section 13.2;
(p) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances other
than those set forth in Section 3.5 in which any such Global
Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered;
(q) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable at the option of
the Holders thereof or the Company, for or into new Securities of
a different series, other Securities of the same series of the
same aggregate principal amount of a different kind or different
authorized denomination or denominations, or other securities or
other property, including shares in the capital of
<PAGE> 40
- 32 -
the Company or any subsidiaries of the Company or securities
directly or indirectly convertible into or exchangeable for such
shares;
(r) if applicable, any covenants in addition to those set forth in
Article 10 to which the Company may be subject with respect to
Securities of such series; or any other additions, deletions or
changes to the provisions of Article 10 or any definitions
relating to such Article that shall be applicable to the
Securities of the series (including a provision making any
Section of such Article inapplicable to the Securities of such
series);
(s) any Event of Default with respect to the Securities of such
series, if not set forth herein, and any additions, deletions or
other changes to the Events of Default set forth herein that
shall be applicable to the Securities of such series (including a
provision making any Event of Default set forth herein
inapplicable to the Securities of that series);
(t) provisions, if any, regarding the appointment by the Trustee of
an Authenticating Agent in one or more places other than the
location of the office of the Trustee with power to act on behalf
of the Trustee and subject to its direction in the authentication
and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the
provisions of this Indenture or in or pursuant to the Board
Resolution or other supplemental indenture creating such series;
(u) the provisions for the payment of any additional amounts, to the
extent not set forth herein; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1.)
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolutions of the Company referred to above and (subject to Section
3.3) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
<PAGE> 41
- 33 -
If any of the terms of the series are established by action taken
pursuant to Board Resolutions of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificates setting forth the terms of the series.
3.2 DENOMINATIONS
The Securities of each series shall be issuable in registered form
without coupons in such denominations and in such currencies as shall be
specified as contemplated by Section 3.1. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of U.S. $1,000 and any integral
multiple thereof.
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Securities shall be executed on behalf of the Company by its
Chairman, its President, one of its Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order (which may provide that Securities that are
the subject thereof will be authenticated and delivered by the Trustee upon the
written order of Persons designated in said Company Order and that such Persons
are authorized to determine such terms and conditions of said Securities as are
specified in the Company Order) shall authenticate and deliver such Securities.
If the form or terms of the Securities of the series have been established in
or pursuant to one or more Board Resolutions of the Company as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in
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relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions of the Company as permitted by
Section 2.1, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolutions of the Company as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles
and to such other matters as counsel may specify.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and contemplate issuance of all Securities
of such series.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
3.9, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
3.4 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities, which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of 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 maintained pursuant to Section 10.2 in a Place
of Payment for that series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. 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 and
tenor.
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3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office 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 Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security or of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferee, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company, or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but 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 3.4, 9.6 or 11.7 not involving any transfer.
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The Company shall not be required to (a) issue, register the transfer or
exchange of Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (b) register the
transfer or exchange of any Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(a) such Depositary (i) notifies the Company and the Trustee that it is
unwilling or unable to continue as Depositary for such Global Security or (ii)
ceases to be a clearing agency registered under the Exchange Act and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives the notice referred to in subclause (i) or becomes aware of
the condition specified in subclause (ii), (b) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, (c) there shall have occurred and be continuing an Event of
Default with respect to the Securities evidenced by such Global Security or (d)
there shall exist such other circumstances, if any, as have been specified for
this purpose as contemplated by Section 3.1. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered.
Every Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 3.4, 3.6, 9.6 or 11.7 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security.
3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new
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Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion,
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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 Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section 3.6 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.
3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Except as otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
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In the case of Securities represented by a Global Security registered in
the name of or held by a Depositary or its nominee, unless otherwise specified
by Section 3.1, payment of principal, premium, if any, and interest, if any,
will be made to the Depositary or its nominee, as the case may be, as the
registered owner or Holder of such Global Security. None of the Company, the
Trustee, any Paying Agent, any Authenticating Agent nor the Security Registrar
for such Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interest in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, on
such date, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the 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 Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder
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of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities 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 (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice is given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
At the option of the Company, interest on Securities of any series that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
3.8 PERSONS DEEMED OWNERS
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (except as otherwise specified as contemplated by Section 3.1(c) and
subject to Section 3.7) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
In the case of a Global Security, so long as the Depositary for such
Global Security, or its nominee, is the registered owner of such Global
Security, such Depositary or such nominee, as the case may be, will be
considered the sole owner
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or Holder of the Securities represented by such Global Security for all
purposes under this Indenture. Except as provided in Section 3.5, owners of
beneficial interests in a Global Security will not be entitled to have
Securities that are represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such
Securities in definitive form and will not be considered the owners or Holders
thereof under this Indenture.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall (a) prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or (b) impair, as between a
Depositary and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depositary as Holder of such Global Security.
3.9 CANCELLATION
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
3.10 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE 4
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights or registration of transfer or
exchange of Securities herein expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either,
(i) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation, or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee, as trust
funds in trust for the
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purpose, money in the currency in which the Securities of such
series are denominated or Government Obligations of the
government issuing the currency in which the Securities of such
series are denominated which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide lawful money not later than one day before the due dates
of principal (and premium, if any) or interest, or any
combination thereof, in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to the
Securities of all series to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a)
of this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
4.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the penultimate paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture,
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to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal and any premium and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE 5
REMEDIES
5.1 EVENTS OF DEFAULT
"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 either inapplicable to a particular
series or it is specifically deleted or modified in the Board Resolutions or
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) default in the performance, or breach of any covenant or warranty
of the Company in this Indenture or of any other covenant to
which the Company is subject with respect to such series of
Securities by virtue of Section 3.1(r) (other than a covenant or
warranty a default in whose performance or whose breach is
specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture or in the applicable
Board Resolutions or supplemental indenture with respect to such
series of Securities solely for the benefit of a series of
Securities other than that series or which has been included in
this Indenture or in
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the applicable Board Resolutions or supplemental indenture with
respect to such series of Securities but not made applicable to
the Securities of such series) and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series, a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that
series) having an aggregate principal amount outstanding of at
least U.S. $10,000,000 or under any mortgage, indenture or
instrument (including this Indenture) under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding of at least U.S.
$10,000,000 whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to
pay any portion of the principal of such indebtedness when due
and payable at the final maturity thereof after the expiration of
any applicable grace period with respect thereto or shall have
resulted in such indebtedness becoming or being declared due and
payable in full prior to the date on which it would otherwise
have become due and payable; or
(f) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company in an
involuntary case or proceeding under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and Insolvency Act
(Canada) or the Winding-Up Act (Canada) or any other bankruptcy,
insolvency, reorganization or similar law, or (ii) a decree or
order 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
any applicable Canadian or provincial law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or
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order for relief specified in this clause (ii) unstayed and in
effect for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding
under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act
(Canada) or any other bankruptcy, insolvency, reorganization or
similar law, or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by the Company to the
entry of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under the Companies'
Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency
Act (Canada) or the Winding-Up Act (Canada) or any other
bankruptcy, insolvency, reorganization or similar law, or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Company or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any
applicable Canadian or provincial law, or the consent by it to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by the
Company of an assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental indenture
or Board Resolution of the Company under which such series of
Securities is issued or in the form of Security for such series.
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders) and upon any such declaration
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such principal amount (or specified amount) shall become immediately due and
payable, except that if the Event of Default is an event described in clause
5.1(f) or 5.1(g) above, the principal amount (or in the case of Original Issue
Discount Securities, such portion thereof) of all Securities shall become due
and payable immediately, without notice of further action of any kind
whatsoever.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made, but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefore in such
Securities, to the extent that payment of such interest is
lawful,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that
series 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.
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5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default
continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof; or
(c) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of
the Securities of any series, and any such default continues for
any period of grace provided with respect to the Securities of
such series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security (or the Holders of any such series in the case of
clause (c) above), the whole amount then due and payable on any such Security
(or the Securities of any such series in the case of clause (c) above) for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefore
by the terms of any such Security (or of Securities of any such series in the
case of clause (c) above); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decrees, and may enforce the
same against the Company or any other obligor upon the Securities of such
series and collect the money 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 occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial
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proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under Applicable Legislation in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; 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 the Trustee, and in
the event that the Trustee shall consent to the making of such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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5.6 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) first, to the payment of all amounts due the Trustee hereunder;
(b) second, to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively; and
(c) third, the balance, if any, to the Company or any other Person or
Persons entitled thereto.
5.7 LIMITATION ON SUITS
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request;
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(d) the Trustee for 60 days after receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, 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 of such
Holders.
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of any premium and (except as specified as
contemplated by Section 3.1(c) and subject to Section 3.7) any interest on such
Security on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment and such rights shall not be impaired
without the consent of such Holder.
5.9 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
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5.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
5.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
5.12 CONTROL BY HOLDERS
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders of Securities of that series,
or any other series, not taking part in such direction; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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5.13 WAIVER OF PAST DEFAULTS
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 hereunder with respect to such
series and its consequences, except a default:
(a) in the payment of the principal of or any premium or interest on
any Security of such series; or
(b) in respect of a covenant or provision hereof which under Article
9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
5.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorney's
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided
that this Section shall not be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, or to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series.
5.15 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
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time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company hereby expressly waives (to the extent that it
may lawfully do so) all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
ARTICLE 6
THE TRUSTEE
6.1 CERTAIN DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Trustee shall be as provided by
Applicable Legislation. Subject to Section 1.7:
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform
to the requirements of this Indenture.
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(c) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except
that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities relating
to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for
believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not
assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.1.
6.2 NOTICE OF DEFAULTS
If a default actually known to a Responsible Officer of the Trustee
occurs hereunder with respect to Securities of any series, the Trustee shall
give the Holders of Securities of such series notice of such default as and to
the extent provided by Applicable Legislation and in the manner provided in
Section 1.6; provided, however, that in the case of any default of the
character specified in Section 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given
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until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
6.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 6.1:
(a) the Trustee may rely conclusively and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order
(unless other evidence in respect thereof be herein specifically
prescribed) and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, receive and
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel, at the expense of the
Company, and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee shall have
actual knowledge thereof; and
(i) the Trustee shall have no duty to comply with or monitor the
Company's compliance with, any provisions of Canadian law.
6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and, if the series of Securities was required to be registered under
the Securities Act, that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
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6.5 MAY HOLD SECURITIES
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
6.6 MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company in writing.
6.7 COMPENSATION AND REIMBURSEMENT
The Company covenants and agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or its
agents and counsel in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee (and its officers, directors, employees,
and agents) for, and to hold it harmless against, any loss,
liability or expense, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties
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hereunder, except to the extent any such expense, disbursement or
advance may be attributable to its negligence or bad faith.
"Trustee", for purposes of this Section 6.7, includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not
affect the rights under this Section 6.7 of any other Trustee.
When the Trustee incurs expenses or renders services in connection with
any federal or state bankruptcy or insolvency proceeding or any proceeding
involving creditors rights generally, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally.
6.8 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire a conflicting interest within the
meaning of Applicable Legislation, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, Applicable Legislation and this Indenture, and the Company
shall take prompt action to have a successor Trustee appointed in the manner
provided herein.
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder with respect to the
Securities of each series and, if required, the Trustee shall be a Person that
is eligible pursuant to the Canada Business Corporations Act to act as such,
unless the Company has obtained an exemption with respect to any particular
series of Securities pursuant to subsection 82(3) of the Canada Business
Corporations Act. Where the Securities of such series was required to be
registered under the Securities Act, the Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least U.S. $50,000,000 and is subject to supervision
or examination by United States Federal, Territorial, District of Columbia or
State authority. If such Person 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 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Where the Securities of such
series are distributed pursuant to a prospectus filed with the Ontario
Securities Commission, the Trustee
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shall be a person that is eligible pursuant to the Business Corporations Act.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The 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 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 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
(ii) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by
the Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation of liquidation,
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then, in any such case, (A) the Company by a Board Resolution,
may remove the Trustee with respect to all Securities, or (B)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of
that or those series (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 and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of
Section 6.11. 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 in accordance with the applicable requirements of
Section 6.11, 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 required by Section 6.11, 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.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor
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Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (i) 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, (ii) 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
(iii) 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
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such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
(e) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating
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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 the event any Securities shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities, in either its own name or that of its
predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee with respect to any series of Securities which
was required to be registered under the Exchange Act shall be or become a
creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
6.14 APPOINTMENT OF AUTHENTICATING AGENT
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, if such Authenticating Agent is appointed with
respect to any series of Securities which was required to be registered under
the Exchange Act, shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
U.S. $50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent 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, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most
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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, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to 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, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-------------------------------------
As Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
Not later than January 31 of each year, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing
such series; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i)
contained in the most recent list furnished to the Trustee for
each series as provided in Section 7.1 and (ii) received by the
Trustee for each series in the capacity as Security Registrar if
the Trustee is acting in such capacity. The Trustee may destroy
any list furnished to it as provided in Section 7.1 upon receipt
of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by Applicable Legislation.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to Applicable
Legislation.
7.3 REPORTS BY TRUSTEE
(a) Not later than January 31 of each year, the Trustee shall
transmit to Holders of Securities, as their names and addresses
appear in the Security Register, such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to Applicable Legislation at the times and in the manner
provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
7.4 REPORTS BY COMPANY
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in
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the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
corporation or convey, transfer, sell or lease its properties and assets
substantially as an entirety (treating the Company and each Subsidiary of the
Company as a single consolidated entity and treating any sale by a Subsidiary
as a sale by the Company for such purpose) to any corporation, and the Company
shall not permit any corporation (other than a wholly owned Subsidiary of the
Company) to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(a) the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and
assets substantially as an entirety (treating the Company and
each Subsidiary of the Company as a single consolidated entity
and treating any sale by a Subsidiary as a sale by the Company
for such purpose) to any corporation, where the corporation
formed by such consolidation or into which the Company is merged
or the corporation which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company
substantially as an entirety (treating the Company and each
Subsidiary of the Company as a single consolidated entity and
treating any sale by a Subsidiary as a sale by the Company for
such purpose), shall be organized and existing under the laws of
the United States of America or a state thereof or the District
of Columbia, or the laws of Canada or a province thereof, and
such corporation shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, the
due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance
of every covenant of this Indenture on the part of the Company to
be performed or observed;
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(b) the Trustee shall have received an Opinion of Counsel to the
effect that the transaction will not result in the successor
being required to make any deduction or withholding on account of
any present or future tax, duty, levy, impost, assessment or
other governmental charge imposed or levied by or on behalf of
the Government of Canada or of any province or territory thereof
or by any authority or agency therein or thereof having power to
tax from any payments in respect of the Securities;
(c) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company, or
any Subsidiary as a result of such transaction as having been
incurred by the Company, or such Subsidiary at the time of such
transaction, no Event or Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
8.2 SUCCESSOR SUBSTITUTED
Upon any consolidation of the Company with, or merger of the Company
into, any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following
purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(b) to add to the covenants of the Company or to surrender any right
or power herein conferred upon the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants
or the surrender of such right or power are to be for the benefit
of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of
such series); or
(c) to add any additional Events of Default with respect to the
Securities of any or all series (and if such additional Events of
Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of one or more
specified series); or
(d) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form;
or
(e) to add, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder
of any such Security with respect
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to such provision or (ii) shall become effective only when there
is no such Security Outstanding of such series; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by another corporation as 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 6.11(b); or
(i) to comply with the requirements of the Commission in connection
with the qualification of this Indenture under the Trust
Indenture Act; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause 9.1(j) shall not adversely affect the
interests of the Holders of Securities of any series.
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture or indentures, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of each such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change the Maturity or the Stated Maturity of the principal of,
or any instalment of principal of or interest on, any Security,
or reduce the
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principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change the
method of computing the amount of principal thereof or interest
thereon on any date, or change any Place of Payment where, or the
coin or currency in which, any Security 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
Maturity or the Stated Maturity, as the case may be, thereof (or,
in the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults
hereunder and their consequences, provided for in this Indenture;
or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.9, except to increase any such percentage, or to
designate, in any supplemental indenture, additional provisions
of this Indenture which, with respect to such series, cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 10.9, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.1(h).
A supplemental indenture which changes or eliminates any covenants or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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9.3 EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) 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, and an Officers' Certificate
stating that all conditions precedent to the execution of such supplemental
indenture have been fulfilled. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees's own
rights, duties or immunities under this Indenture or otherwise.
9.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby to the extent provided therein.
9.5 CONFORMITY WITH APPLICABLE LEGISLATION
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of Applicable Legislation.
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Company and the Trustee, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE 10
COVENANTS
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of such series in accordance with the
terms of the Securities and this Indenture and will duly comply with all the
other terms, agreements and conditions contained in, or made in this Indenture
for the benefit of, the Securities of such series.
10.2 MAINTENANCE OF OFFICE OR AGENCY
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the Trustee 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 Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, Attention: Corporate Trust and Agency
Group--Corporate Market Services, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, or any premium or interest on, any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and the Company will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of, or any
premium or interest on, any Securities of such series, deposit with any such
Paying Agent a sum sufficient to pay such principal, premium (if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium (if any) or interest thereon and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities,
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will: (a) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided; (b) give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal (and premium, if any) or
interest on the Securities of such series; (c) at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent for
payment in respect of such series; and (d) indemnify the Trustee and its
officers, directors, employees and agents against any loss, cost or liability
associated with such Paying Agent's acts or omissions hereunder.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or the Company may by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such
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payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, or any premium or
interest on, any Security of any series 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 (including interest income accrued on
such funds, if any), or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once in the Wall Street Journal and once in the national edition of
The Globe and Mail or other daily newspapers of national circulation in each of
the United States and Canada or mail to each Holder of the Securities for which
the money to be repaid is held in trust, as their names and addresses appear in
the Security Register, a 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 or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.
The Company initially authorizes the Trustee to act as Paying Agent for
the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
10.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall so be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. Such statement need not
include reference to any default which has been fully cured prior to the date
as of which such statement speaks.
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10.5 EXISTENCE
Subject to Article 8, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
10.6 MAINTENANCE OF PROPERTIES
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as (and to the extent)
in the judgment of the Company may be necessary or appropriate in connection
with its business; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
10.7 PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(b) all lawful claims for labour, materials and supplies which, if unpaid,
might by law become a material lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings; provided, further, 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 unless the failures to pay or discharge such tax,
assessment, charge or claim would individually or in the aggregate with all
such failures, have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
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10.8 PAYMENT OF ADDITIONAL AMOUNTS
All payments made by or on behalf of the Company under or with respect
to the Securities (including interest, principal and any applicable redemption
premiums) will be made free and clear of and without withholding or deduction
for or on account of any present or future tax, duty, levy, impost, assessment
or other government charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of Canada
or of any province or territory thereof or by any authority or agency therein
or thereof having power to tax (hereinafter "Taxes"), unless the Company is
required to withhold or deduct Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency. If the
Company is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to the Securities, the
Company will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder (including Additional
Amounts) after such withholding or deduction will not be less than the amount
the Holder would have received if such Taxes had not been withheld or deducted;
provided, however, that no Additional Amounts will be payable with respect to a
payment made to a Holder (an "Excluded Holder") in respect of the beneficial
owner thereof (i) with which the Company does not deal at arm's length (within
the meaning of the Income Tax Act) at the time of making such payment, (ii)
which is subject to such Taxes by reason of its failure to comply with any
certification, identification, information, documentation or other reporting
requirement if compliance is required by law, regulation, administrative
practice or an applicable treaty as a precondition to exemption from, or a
reduction in, the rate of deduction or withholding of, such Taxes or (iii)
which is subject to such Taxes by reason of its carrying on business in or
being connected with Canada or any province or territory thereof otherwise than
by the mere holding of Securities or the receipt of payment thereunder. The
Company will make such withholding or deduction and remit the full amount
deducted or withheld to the relevant authority as and when required in
accordance with applicable law. The Company will pay all taxes, interest and
other liabilities which arise by virtue of any failure of the Company to
withhold, deduct and remit to the relevant authority on a timely basis the full
amounts required in accordance with applicable law. The Company will furnish
to the holder of the Securities, within 30 days after the date the payment of
any Taxes is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Company.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay
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Additional Amounts with respect to such payment, the Company will deliver to
the Trustee an Officers' Certificate stating the fact that such Additional
Amounts will be payable, stating the amounts so payable and setting forth such
other information as is necessary to enable the Trustee to pay such Additional
Amounts to Holders on the payment date. Whenever in this Indenture there is
mentioned, in any context, the payment of principal (and premium, if any),
Redemption Price, interest or any other amount payable under or with respect to
any Security, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment
of Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made (if applicable).
The obligations of the Company under this Section 10.8 survive the
termination, defeasance or discharge of the Indenture and the payment of all
amounts under or with respect to the Securities.
10.9 WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any term,
provision or condition to which the Company is subject with respect to the
Securities of any series by virtue of Section 3.1(r), or any covenant provided
pursuant to Section 9.1(b) for the benefit of Holders of such series, if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
10.10 REPORTS TO HOLDERS
(a) The Company will file with the Commission all information,
documents and reports required as of the date of issuance of any series of
Securities issued hereunder to be filed with the Commission pursuant to Section
13 or 15(d) of the Exchange Act, whether or not the Company is subject to such
filing requirements, so long as the Commission will accept such filings. The
Company will file with the Trustee, within 15 days after it files them with the
Commission, copies of the
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information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may prescribe) which the Company files with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(b) If the Company is unable to file such reports with the
Commission because the Commission does not permit such filings, the Company
will cause such reports to be delivered to the Trustee and the Trustee will
deliver such reports to the Holders, at the Company's expense. The
consolidated financial statements in each such report will be prepared in
accordance with GAAP, and will contain a reconciliation to accounting
principles generally accepted in the United States prepared in accordance with
the rules and regulations of the Commission.
ARTICLE 11
REDEMPTION OF SECURITIES
11.1 APPLICABILITY OF ARTICLE
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
3.1 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series of the same tenor, 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 Trustee), notify
the Trustee of such Redemption Date of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed, which notice shall be irrevocable. 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 the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence. The Trustee shall have no
liability in connection any such selection (made in good faith) of Securities
to be redeemed. Unless otherwise provided in the terms of a particular series
of Securities, the portions of the principal of Securities so selected for
partial redemption shall be equal to the minimum authorized denomination of the
Securities of such series, or an integral multiple thereof, and the principal
amount which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
If any convertible or exchangeable Security selected for partial
redemption is converted in part before the termination of the conversion or
exchange right with respect to the portion of the Security so selected, the
converted or exchanged portion of such Security shall be deemed (so far as may
be) to be the portion selected for redemption.
Upon any redemption of fewer than all of the Securities of any given
series, the Company and the Trustee may treat as Outstanding any Securities
surrendered for conversion or exchange during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
The Trustee 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.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
11.4 NOTICE OF REDEMPTION
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
Any notice that is mailed to the Holder of any Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(c) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed;
(d) 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 of
such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(e) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date;
(f) in the case of any Securities that are convertible pursuant to
Article 14, the Conversion Price, the date on which the right to
convert the
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principal of the Securities to be redeemed will terminate and the
place or places where such Securities may be surrendered for
conversion;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(h) that the redemption is for a sinking or purchase fund or other
analogous obligation, if such is the case.
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
Trustee in the name and at the expense of the Company and shall be irrevocable.
11.5 DEPOSIT OF REDEMPTION PRICE
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in same day funds (or New York Clearing House funds if such deposit is
made three days prior to the applicable Redemption Date) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
11.6 SECURITIES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, instalments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant record dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest
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from the Redemption Date at the rate prescribed therefor in the Security and
each Security shall remain convertible into Common Shares until the principal
of such Security shall have been paid or fully provided for.
11.7 SECURITIES REDEEMED IN PART
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
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 sinking fund payment may be subject to reduction as provided
in Section 12.2. 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.
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12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been 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 sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
12.3 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 Trustee an Officers'
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 and the portion thereof, if any,
which is to be satisfied by delivering the crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 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 11.4. The Trustee shall have no
liability for any such selection (made in good faith) of Securities. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.
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ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
The Company may elect, at its option by Board Resolution, at any time,
to have either Section 13.2 or Section 13.3 applied to the Outstanding
Securities of any series designated pursuant to Section 3.1 as being defeasible
pursuant to this Article 13 (hereinafter called a "Defeasible Series"), upon
compliance with the conditions set forth below in this Article 13; provided
that Section 13.2 shall not apply to any series of Securities that is
convertible into or exchangeable for any other securities pursuant to Section
3.1(q).
13.2 DEFEASANCE AND DISCHARGE
Upon the exercise by the Company of the option provided in Section 13.1
to have this Section 13.2 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 13.1, the Company shall
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all of its
other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of Securities of such series
to receive, solely from the trust fund described in Section 13.4 and as more
fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities of such series when payments are
due, (b) the obligations of the Company with respect to the Securities of such
series under Sections 3.4, 3.5, 3.6, 10.2, 10.3 and 10.8, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (d) this
Article 13. Subject to compliance with this Article 13, the Company may
exercise its option provided in Section 13.1 to have this Section 13.2 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the
prior exercise of its option provided in Section 13.1 to have Section 13.3
applied to the Outstanding Securities of such series.
13.3 COVENANT DEFEASANCE
Upon the exercise by the Company of the option provided in Section 13.1
to have this Section 13.3 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company shall be released from its obligations under
Sections 10.5 through 10.7, inclusive, and under any other covenant to which
the Company is subject with
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respect to such series of Securities by virtue of Section 3.1(r) and Section
8.1 and (b) the occurrence of any event specified in Sections 5.1(d) (with
respect to any of Section 10.5 through 10.7 inclusive and any other covenant to
which the Company is subject with respect to such series of Securities by
virtue of Section 3.1(r) and Section 8.1), 5.1(e) and 5.1(h) shall be deemed
not to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 5.1(d)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities of such series shall be unaffected thereby.
13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following shall be the conditions to application of either Section
13.2 or Section 13.3 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agrees to comply
with the provisions of this Article 13 applicable to it) and
conveyed all right, title and interest to the Trustee for the
benefit of the Holders of the Securities of such series, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust for the
purpose of making the following payments, specifically pledged to
the Trustee as security for, and dedicated solely to, the benefit
of the Holders of Outstanding Securities of such series, (i) an
amount in the currency in which the Securities of such series are
denominated and in which payments of principal, premium (if any)
and interest are to be made, or (ii) the equivalent in Government
Obligations denominated in the currency in which the Securities
of such series are denominated and in which payments of
principal, premium (if any), or interest are to be made, issued
by the government that issued such currency, 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,
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money in an amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants or chartered accountants expressed
in a written certification thereof delivered to the Trustee, to
pay and discharge, without consideration of the reinvestment of
such interest and after payment of all federal, state, provincial
and local taxes or other charges and assessments in respect
thereof payable by the Trustee and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge each instalment of principal (including mandatory
sinking fund payments) of, and premium (not relating to optional
redemption), if any, and interest on, the Outstanding Securities
of such series on the dates such instalments of principal of, and
premium (not relating to optional redemption), if any, or
interest are due up to the Stated Maturity Date, or the
Redemption Date, as the case may be (provided that in the case of
redemption, before such deposit, the Company must give to the
Trustee, in accordance with Section 11.2 hereof, a notice of its
election to redeem the Outstanding Securities at a future date in
accordance with Article 11 hereof, which notice shall be
irrevocable).
(b) In the case of an election under Section 13.2 with respect to any
series of Securities required to be registered under the
Securities Act, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the United States Internal
Revenue Service a ruling or (ii) since the date first set forth
herein above, there has been a change in the applicable Federal
income tax law, in either case (i) or (ii) to the effect that,
and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize gain
or loss for United States Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with
respect to the Securities of such series and will be subject to
United States Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(c) In the case of an election under Section 13.3 with respect to any
series of Securities required to be registered under the
Securities Act, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of the
Outstanding Securities of such series
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will not recognize income, gain or loss for United States Federal
income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to the Securities of such
series and will be subject to United States Federal income tax on
the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were
not to occur.
(d) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if
then listed on any securities exchange, will not be delisted as a
result of such deposit.
(e) No Event of Default or event that (after notice of lapse of time
or both) would become an Event of Default shall have occurred and
be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 5.1(f)
and 5.1(g), at any time on or prior to the 123rd day after the
date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 123rd day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of
Applicable Legislation (assuming, in the case of the Trust
Indenture Act, that all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by
which it is bound.
(h) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(i) With respect to any series of Securities required to be
registered under the Securities Act, such Defeasance or Covenant
Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of
the United States Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt
from regulation thereunder.
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13.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 13.6, the Trustee and any such other trustee are referred
to collectively as the "Trustee") pursuant to Section 13.4 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law and shall not be subject to the claims of the holders of
Senior Indebtedness.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Notwithstanding anything in this Article 13 to the contrary, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 13.4 with
respect to Securities of any Defeasible Series that, in the opinion of a
nationally recognized firm of independent public accountants or chartered
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
13.6 REINSTATEMENT
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article 13 with respect to the Securities of any series by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though
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no deposit had occurred pursuant to this Article 13 with respect to Securities
of such series and monies so deposited shall be returned to the Company.
ARTICLE 14
CONVERSION OF SECURITIES
14.1 APPLICABILITY; CONVERSION PRIVILEGE AND CONVERSION PRICE
If pursuant to a Board Resolution with respect to Securities of any
series, Securities of such series may be convertible into Common Shares of the
Company, such conversion shall be in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is U.S. $1,000 or an integral multiple of U.S. $1,000
(unless otherwise specified in a Board Resolution or supplemental indenture
with respect to the Securities of the relevant series), may be converted at the
principal amount thereof, or of such portion thereof, into fully paid and non-
assessable Common Shares (calculated as to each conversion to the nearest 1/100
of a share) of the Company, at the Conversion Price, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right shall
expire at the close of business on the date specified for Securities of such
series. In case a Security or portion thereof is called for redemption, such
conversion right in respect of the Security or portion so called shall expire
at the close of business on the Redemption Date, unless the Company defaults in
making the payment due upon redemption.
The price at which Common Shares shall be delivered upon conversion (the
"Conversion Price") shall initially be the price per Common Share at which the
Securities of the relevant series are convertible as set forth in any Board
Resolution with respect to such series (or any supplemental indenture with
respect thereto). The Conversion Price shall be adjusted in certain instances
as provided in Section 14.4.
14.2 EXERCISE OF CONVERSION PRIVILEGE
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company
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or in blank, at any office or agency of the Company maintained for that purpose
pursuant to Section 10.2, accompanied by written notice to the Company (which
shall be substantially in the form set forth in Section 2.3) at such office or
agency or, if applicable, by notice in accordance with the procedures of the
Depositary that the Holder elects to convert such Security or, if less than the
entire principal amount thereof is to be converted, the portion thereof to be
converted. Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Securities or portions thereof which have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for conversion;
provided, however, that a Security surrendered for conversion on an Interest
Payment Date need not be accompanied by a payment and interest on the principal
amount of the Securities being converted will be paid on such Interest Payment
Date to the Holder of such Security on the immediately preceding Record Date.
Except as provided in the Securities and subject to the last paragraph of
Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the Common Shares issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Shares issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Shares at such
time. As promptly as practicable on or after the date of conversion, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full Common Shares issuable upon conversion,
together with payment in lieu of any fraction of a share, as provided in
Section 14.3.
All Securities converted in accordance with the provisions of this
Article 14 are, and shall be deemed to have been, transferred to or for the
account of the Company.
In the case of any Security which is converted in part only, upon such
conversion, the Company shall execute and the Trustee shall authenticate and
deliver
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to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
14.3 FRACTIONS OF SHARES
No fractional Common Shares or other such securities shall be issued
upon conversion of Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional Common Share which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction
in an amount equal to the same fraction of the closing price per Common Share
at the close of business on the day prior to the day of conversion on the
American Stock Exchange or, if the Common Shares are not listed or admitted to
trading on such exchange, on the principal (as determined by the Company's
Board of Directors) national or Canadian securities exchange on which the
Common Shares are listed or admitted to trading or, if not listed or admitted
to trading on any national or Canadian securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System
or, if the Common Shares are not listed or admitted to trading on any national
or Canadian securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose.
14.4 ADJUSTMENT OF CONVERSION PRICE
The Conversion Price with respect to any Security which is convertible
into for Common Shares shall be subject to adjustment from time to time as
follows:
(a) If the Company shall pay or make a dividend or other distribution
on any class of equity capital of the Company which is payable in
Common Shares, the Conversion Price in effect at the opening of
business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend
or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which (i) the numerator shall
be the number of Common Shares outstanding at the close of
business on the date fixed for such
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determination and (ii) the denominator shall be the sum of such
number of shares referred to in the preceding clause and the
total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed
for such determination.
(b) If the Company shall issue rights or warrants to all holders of
its Common Shares entitling them to subscribe for or purchase
Common Shares at a price per share less than the current market
price per Common Share (determined as provided in paragraph
14.4(h)) on the date fixed for the determination of shareholders
entitled to receive such rights or warrants, the Conversion Price
in effect at the opening of business on the day following the
date fixed for such determination shall be reduced by multiplying
such Conversion Price by a fraction of which (i) the numerator
shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number
of Common Shares which the aggregate of the offering price of the
total number of Common Shares so offered for subscription or
purchase would purchase at such current market price and (ii) the
denominator shall be the number of Common Shares outstanding at
the close of business on the date fixed for such determination
plus the number of Common Shares so offered for subscription or
purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for
such determination.
(c) If outstanding Common Shares shall be subdivided into a greater
number of Common Shares, the Conversion Price in effect at the
opening of business on the day following the day upon which
subdivision becomes effective shall be proportionately reduced,
and, conversely, in case outstanding Common Shares shall be
consolidated into a smaller number of Common Shares, the
Conversion Price in effect at the opening of business on the day
following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase,
as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or consolidation becomes effective.
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(d) If the Company shall, by dividend or otherwise, at any time
distribute (other than periodic dividends declared or paid in
accordance with the Company's practice as established from time
to time) to all holders of its Common Shares cash (excluding any
cash that is distributed as part of a distribution referred to in
paragraph 14.4(f)) in an aggregate amount that, together with (i)
the aggregate amount of any other distribution (other than
periodic dividends declared or paid in accordance with the
Company's practice as established from time to time) to all
holders of its Common Shares made exclusively in cash within the
12 months preceding the date of payment of such distribution and
in respect of which no Conversion Price adjustment pursuant to
this paragraph 14.4(d) has been made and (ii) the aggregate of
any cash plus the fair market value (as determined by the Board
of Directors of the Company, whose determination shall be
conclusive and described in a Board Resolution) of consideration
payable in respect of any tender offer or other offer to purchase
by the Company or any Subsidiary for all or any portion of the
Company's Common Shares concluded within the 12 months preceding
the date of payment of such distribution and in respect of which
no Conversion Price adjustment pursuant to paragraph 14.4(e) has
been made, exceeds the percentage specified in the terms of the
relevant series of Securities as provided in Section 3.1 of the
Company's Aggregate Market Capitalization (determined as provided
in paragraph 14.4(i)), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness
of the Conversion Price reduction contemplated by this paragraph
14.4(d) by a fraction of which (i) the numerator shall be the
current market price per Common Share (determined as provided in
paragraph 14.4(h)) on such date less the amount of cash so
distributed applicable to one Common Share and (ii) the
denominator shall be such current market price per Common Share,
such reduction to become effective immediately prior to the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such cash
dividend; provided, however, that no adjustment shall be made
with respect to any distribution of rights to purchase securities
of the Company if a Holder of Securities would otherwise be
entitled to receive such rights upon conversion or exchange at
any time of such Securities into Common Shares or other such
securities unless such rights are subsequently redeemed by the
Company, in which case such redemption shall be treated for
purposes of this Section as a dividend
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on the Common Shares or other such securities. Such adjustment
shall become effective retroactively immediately after the record
date for the determination of shareholders or holders of other
such securities entitled to receive such distribution; and in the
event that such distribution is not so made, the Conversion Price
shall again be adjusted to the Conversion Price which would then
be in effect if such record date had not been fixed.
(e) If an issuer bid, tender offer or other offer to purchase made by
the Company or any Subsidiary for all or any portion of the
Common Shares of the Company shall be consummated and such issuer
bid, tender offer or other offer to purchase shall involve an
aggregate consideration having a fair market value (as determined
by the Board of Directors of the Company, whose determination
shall be conclusive and described in a Board Resolution) on the
last time (the "Expiration Time") tenders may be made pursuant to
such bid or offer (as it may be amended) or Common Shares may be
deposited pursuant to such other offer to purchase that, together
with (i) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors of the Company, whose
determination shall be conclusive and described in a Board
Resolution), as of the Expiration Time, of consideration payable
in respect of any issuer bid, tender offer or other offer to
purchase by the Company or any Subsidiary for all or any portion
of the Common Shares of the Company consummated within the 12
months preceding the Expiration Time and in respect of which no
Conversion Price adjustment pursuant to this paragraph 14.4(e)
has been made and (ii) the aggregate amount of any distributions
(other than periodic dividends declared or paid in accordance
with the Company's practice as established from time to time) to
all holders of the Common Shares of the Company made exclusively
in cash within the 12 months preceding the Expiration Time and in
respect of which no Conversion Price adjustment pursuant to
paragraph 14.4(d) has been made, exceeds the percentage specified
in the terms of the relevant series of Securities as provided in
Section 3.1 of the product of the current market price per Common
Share (determined as provided in paragraph 14.4(i)) on the
Expiration Time times the number of Common Shares outstanding
(including any tendered or deposited shares) on the Expiration
Time, the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Expiration Time by
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a fraction of which the numerator shall be (i) the product of the
current market price per Common Share (determined as provided in
paragraph 14.4(i)) on the Expiration Time times the number of
Common Shares outstanding (including any tendered or deposited
shares) on the Expiration Time minus (ii) the fair market value
(determined as aforesaid) of the aggregate consideration payable
to shareholders based on the acceptance (up to any maximum
specified in the terms of the tender offer or other offer to
purchase) of all shares validly tendered or deposited and not
withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchase Shares") and the denominator shall be the product of
(i) such current market price per share on the Expiration Time
times (ii) such number of outstanding shares on the Expiration
Time minus the number of Purchased Shares, such reduction to
become effective immediately prior to the opening of business on
the day following the Expiration Time.
(f) If the Company shall, by dividend or otherwise, distribute to all
holders of its Common Shares evidences of its indebtedness or
assets (including securities, but excluding any rights or
warrants referred to in paragraph 14.4(b), any cash dividends
referred to in paragraph 14.4(d) and any dividends or
distributions referred to in paragraph 14.4(a)), the Conversion
Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for
the determination of shareholders entitled to receive such
distribution by a fraction of which the numerator shall be the
current market price per Common Share (determined as provided in
paragraph 14.4(i)) on the date fixed for such determination less
the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive
and described in a Board Resolution) of the portion of the assets
or evidences of indebtedness so distributed applicable to one
Common Share and the denominator shall be such current market
price per Common Share, such adjustment to become effective
immediately prior to the opening of business on the day following
the date fixed for the determination of shareholders entitled to
receive such distribution. For the purposes of this paragraph
14.4(f), the distribution of a security which is distributed not
only to the holders of the Common Shares on the date fixed for
the distribution of such security, but also is distributed with
each Common Shares delivered to a Holder exercising
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the conversion privilege subsequent to such distribution date,
shall not require an adjustment of the Conversion Price pursuant
to this paragraph 14.4(f); provided that on the date, if any, on
which a Holder exercising the conversion or exchange privilege
would no longer be entitled to receive such security with a
Common Share (other than as a result of the termination of all
such securities), a distribution of such securities shall be
deemed to have occurred and the Conversion Price shall be
adjusted as provided in this paragraph 14.4(f) (and such day
shall be deemed to be "the date fixed for the determination of
the shareholders entitled to receive such distribution" and "the
date fixed for such determination" within the meaning of the
immediately preceding sentence).
(g) The reclassification of Common Shares into securities including
securities other than Common Shares (other than any
reclassification upon a consolidation or merger to which Section
14.11 applies) shall be deemed to involve (i) a distribution of
such securities other than Common Shares to all holders of Common
Shares (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of
shareholders entitled to receive such distribution" and "the date
fixed for such determination" within the meaning of paragraph
14.4(f)), and (ii) a subdivision or consolidation, as the case
may be, of the number of Common Shares outstanding immediately
prior to such reclassification into the number of Common Shares
outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which
such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective"
within the meaning of paragraph 14.4(c)).
(h) For the purpose of any computation under paragraphs 14.4(b),
14.4(d), 14.4(e) and 14.4(f), the current market price per Common
Share on any date shall be deemed to be the average of the daily
closing prices for the five consecutive trading days selected by
the Company commencing not more than 20 trading days before, and
ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or
distribution requiring such computation. The closing price for
each day shall be the last reported sales price regular way or,
in case no such reported sale takes place on such day,
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the average of the reported closing bid and asked prices regular
way, in either case on the American Stock Exchange or, if the
Common Shares are not listed or admitted to trading on such
exchange, on the principal (as determined by the Company's Board
of Directors) national or Canadian securities exchange on which
the Common Shares are listed or admitted to trading or, if not
listed or admitted to trading on any national or Canadian
securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if the
Common Shares are not listed or admitted to trading on any
national or Canadian securities exchange or quoted on such
National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the
Company for that purpose. For purposes of this paragraph, the
term "'ex' date", when used with respect to any issuance or
distribution, means the first date on which the Common Shares
trade regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(i) For purposes of any computation under paragraph 14.4(d), the
Aggregate Market Capitalization shall be deemed to be the product
of (i) the current market price (as determined in paragraph
14.4(h) above) on the last trading day of the most recent quarter
and (ii) the number of Common Shares outstanding on the last
trading day of the most recent quarter.
(j) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs 14.4(a) through 14.4(g),
as it considers to be advisable in order that any event treated
for United States or Canadian federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the
recipients. The Company shall have the power to resolve any
ambiguity or correct any error in this paragraph 14.4(j) and its
actions in so doing shall be final and conclusive.
(k) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least
one percent in such price; provided, however, that any
adjustments which by reason of this paragraph 14.4(k) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment.
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All calculations under this Article shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may
be.
(l) For the purpose of this Section, each Holder of Securities shall
be deemed to have failed to exercise any right to elect the kind
or amount of securities receivable upon the payment of any such
dividend, subdivision, consolidation or reclassification
(provided that if the kind or amount of securities receivable
upon such dividend, subdivision, consolidation or
reclassification is not the same for each non-electing share,
then the kind and amount of securities or other property
receivable upon such dividend, subdivision, combination or
reclassification for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of
the non-electing shares).
14.5 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 14.4 and shall prepare a certificate
signed by a responsible officer of the Company setting forth the
adjusted Conversion Price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate
shall forthwith be filed at the Corporate Trust Office of the
Trustee and at each office or agency maintained for the purpose
of conversion of Securities pursuant to Section 10.2; and
(b) a notice stating the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such
notice shall be mailed by the Company to all holders at their
last addresses as they shall appear in the Security Register.
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14.6 NOTICE OF CERTAIN CORPORATION ACTION
In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Shares payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the granting to the holders of its
Common Shares of rights or warrants to subscribe for or purchase
any shares of equity capital of any class or of any other rights;
or
(c) the Company or any Subsidiary shall commence an issuer bid (other
than an issuer which is an exempt issuer bid within the meaning
of the Securities Act (Alberta), as amended), tender offer or
other offer to purchase any of its Common Shares; or
(d) of any reclassification of the Common Shares of the Company
(other than a subdivision or consolidation of its outstanding
Common Shares), or of any consolidation or merger to which the
Company is a party and for which approval of any shareholders of
the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(e) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company,
then the Company shall cause to be filed at the Corporate Trust Office of the
Trustee and at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.2, and shall cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 20 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record, effective or expiration date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Shares of record
to be entitled to such dividend, distribution, rights or warrants are to be
determined, (ii) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Common Shares of record shall be entitled to exchange their Common Shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or (iii) the date on which such tender offer or other offer to purchase
commenced, the date on which such tender offer or other offer to purchase is
scheduled to expire unless
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extended, the consideration offered and the other material terms thereof (or
the material terms of any amendment thereto). Neither the failure to give any
such notice nor any defect therein shall affect the legality or validity of any
action described in clauses (a) through (e) of this Section 14.6.
14.7 COMPANY TO RESERVE COMMON SHARES
The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Shares, for the
purpose of effecting the conversion of Securities, such number of its duly
authorized Common Shares then issuable upon the conversion of all Outstanding
Securities; provided that this Section shall not require the Company to make
any reservation of authorized but unissued Common Shares for so long as the
Company's authorized share capital includes an unlimited number of Common
Shares.
14.8 TAXES ON CONVERSION
The Company will pay any and all taxes that may be payable in respect of
the issue or delivery of Common Shares on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
Common Shares in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount
of any such tax, or has established to the satisfaction of the Company that
such tax has been paid.
14.9 COVENANT AS TO COMMON SHARES
The Company covenants that all Common Shares which may be issued upon
conversion of Securities will upon issue be fully paid and non-assessable and,
except as provided in Section 14.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
14.10 COMPANY AS HOLDER OF CONVERTED SECURITIES
All Securities surrendered for conversion pursuant to Section 14.2 shall
be delivered to the Company. The Company (or any Subsidiary holding such
Securities or any other Person holding such Securities for any of their
respective accounts) shall be deemed to be the Holder of such Securities
commencing on the close of business on the day such Securities are surrendered
for conversion; provided,
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however, that while any of such Securities are Outstanding and held by or for
the account of any person other than the Company (or any Subsidiary or any
other Person holding such Securities for any of their respective accounts), the
Company (or any Subsidiary holding such Securities or any other Person holding
such Securities for any of their respective accounts) shall not be entitled to
any of the rights and remedies of a Holder hereunder, including the right to
convert such Security into Common Shares of the Company, other than the
unconditional right of a Holder to receive principal, premium and interest on
such Securities and the right to enforce payment thereof as provided in Section
5.8.
14.11 PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation, any merger of another corporation into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Common Shares of the
Company) or any sale or transfer of all or substantially all of the assets of
the Company (treating the Company and each of its Subsidiaries as a single
consolidated entity and treating any sale by a Subsidiary as a sale by the
Company for such purpose), the corporation formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then outstanding shall have the right
thereafter, during the period such Security shall be convertible as specified
in Section 14.1, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by a holder of the number of Common Shares of the Company into
which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer, assuming such holder of Common Shares
of the Company (i) is not a Person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale
or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each
Common Share of the Company held immediately prior to such consolidation,
merger, sale or transfer by others than a constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this Section the kind
and amount of securities, cash and other property receivable upon such
consolidation,
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merger, sale or transfer by each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the non-electing
shares). Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article. The Trustee shall not be under any responsibility to
determine the correctness of any provision contained in such supplemental
indenture relating to either the kind or amount of shares, other securities,
cash or property receivable by Holders upon the conversion of their Securities
after any such consolidation, merger, sale or transfer. The above provisions
of this Section shall similarly apply to successive consolidations, mergers,
sales or transfers.
14.12 RESPONSIBILITY OF TRUSTEE AND CONVERSION AGENT
Neither the Trustee nor any agent appointed to effect conversions shall
at any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any such conversion agent shall be accountable with
respect to the validity or value (or the kind or amount) of any Common Shares
or of any securities or property which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any such
conversion agent makes any representation with respect thereto. Neither the
Trustee nor any such conversion agent shall be responsible for any failure of
the Company to issue, transfer or deliver any Common Shares or stock
certificates or other securities or property or to make any cash payment upon
the delivery of any Security for the purpose of conversion or to comply with
any of the covenants contained in this Article.
ARTICLE 15
SUBORDINATION
15.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS
The Company covenants and agrees, and each Holder of Securities of each
series, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities of such series, including the
principal of
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(and premium, if any), including redemption payments, and interest thereon,
shall be subordinate and subject in right of payment, to the extent and in the
manner hereinafter set forth, to the prior payment in full of all Senior
Indebtedness of the Company with respect thereto, whether outstanding on the
date of original issuance of Securities of such series or thereafter incurred.
15.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its assets,
or (b) any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company, then and in any such event specified
in (a), (b) or (c) above (each such event, if any, herein sometimes referred to
as a "Proceeding"), the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made in money or money's worth
before the Holders of the Securities are entitled to receive any payment or
distribution of assets of the Company, of any kind or character, whether in
cash, property or securities, on account of principal of (or premium, if any),
including redemption payments, or interest on the Securities or on account of
any purchase or other acquisition of Securities by the Company or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions by the Company herein referred to, individually and collectively,
as a "Securities Payment"), and to that end the holders of Senior Indebtedness
shall be entitled to receive, for application to the payment thereof, any
Securities Payment which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Indebtedness is paid in full or payment
thereof provided for, and if such fact shall, at or prior to the time of such
Securities Payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such
Securities Payment shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company, for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving
<PAGE> 114
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effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares or other securities of the
Company provided for by a plan or reorganization or readjustment as reorganized
or readjusted, or securities of the Company or any other corporation which are
subordinated in right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, transfer,
sale or lease of its properties and assets, substantially as an entirety to
another corporation upon the terms and conditions set forth in Article 8 shall
not be deemed a Proceeding for the purposes of this Section if the corporation
formed by such consolidation or into which the Company is merged or the
corporation which acquires by conveyance, transfer, sale or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer, sale or lease,
comply with the conditions set forth in Article 8.
15.3 PRIOR PAYMENT OF SENIOR INDEBTEDNESS UPON ACCELERATION OF SECURITIES
In the event that any Securities are declared due and payable before
their Stated Maturity pursuant to the provisions of Article V hereof (an
"Acceleration of Securities"), the holders of the Senior Indebtedness
outstanding at the time of such Acceleration of Securities shall be entitled to
receive payment in full of all amounts due or which become due as a result of
such Acceleration of Securities on or in respect of all such Senior
Indebtedness, or provision shall be made for such payment in money or money's
worth, before the Holders of the Securities are entitled to receive any
Securities Payment.
In the event that, notwithstanding the foregoing, the Company shall make
any Securities Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such Securities Payment, have been made known to a Responsible Officer of the
Trustee or such Holder, as the case may be, then and in such event such
Securities Payment shall be paid over and delivered forthwith to the Company,
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
<PAGE> 115
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The provisions of this Section shall not apply to any Securities Payment
with respect to which Section 15.2 would be applicable.
15.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT
(a) No payment of principal (including redemption payments), premium, if
any, or interest on the Securities may be made (i) if any Senior Indebtedness
of the Company is not paid when due, (ii) if any applicable grace period with
respect to a payment default on Senior Indebtedness has ended and such default
has not been cured or waived or ceased to exist, or (iii) if the maturity of
any Senior Indebtedness of the Company has been accelerated because of a
default.
(b) In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such Securities Payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder then and in such
event such Securities Payment shall be paid over and delivered forthwith to the
Company for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in full, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness.
(c) The provisions of this Section 15.4 shall not apply to any
Securities Payment with respect to which Section 15.2 would be applicable.
15.5 PAYMENT PERMITTED IF NO DEFAULT
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company at any time except during
the pendency of any Proceeding referred to in Section 15.2 or under the
conditions described in Section 15.3 or 15.4, from making at any time
Securities Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Securities Payments or the retention of such
Securities Payment by the Holders, if, at the time of such application by the
Trustee, it did not have actual knowledge that such Securities Payment would
have been prohibited by the provisions of this Article.
15.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness
<PAGE> 116
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to receive payments and distributions of cash, property and securities
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holder of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
15.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS AND SUBJECT TO APPLICABLE
LAWS
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand and are
subject to all applicable laws, including, in the case of the bankruptcy or
insolvency of the Company, the potential application of Canadian legislation.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, the
creditors of the Company, other than holders of Senior Indebtedness and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company, other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
15.8 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of a Security, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
<PAGE> 117
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15.9 NO WAIVER OF SUBORDINATION PROVISIONS
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or the time of payment of, or renew or,
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
15.10 NOTICE TO TRUSTEE
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor or
representative thereof, and prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest on any Security),
then,
<PAGE> 118
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anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to the date such amounts may be payable.
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely conclusively on the delivery to it of a written notice, and proof of
ownership acceptable to the Trustee, by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee therefor or representative thereof)
to establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee therefor or representative thereof). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article,
and if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
15.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely conclusively upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
15.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness and shall not be liable to any such holders if it shall
in good
<PAGE> 119
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faith and absent gross negligence or willful misconduct, mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
15.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF
TRUSTEE'S RIGHTS
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
15.14 ARTICLE APPLICABLE TO PAYING AGENTS
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 15.10 and 15.13 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
15.15 SUBSIDIARIES
No payment, distribution of assets or other action may be taken by any
Subsidiary of the Company with respect to the Securities if the Company would
be prohibited by this Article 15 from taking such action.
15.16 RESCISSION
The provisions of this Article 15 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment in respect of any of
the Senior Indebtedness is rescinded or must otherwise be returned by the
holder thereof upon the insolvency, bankruptcy or reorganization of the Company
or otherwise, all as though such payment had not been made.
<PAGE> 120
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15.17 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT
For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities in accordance with
their terms shall not be deemed to constitute a Securities Payment, and (b) the
payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion or exchange of a Security shall be deemed to
constitute a Securities Payment. For the purposes of this Section, the term
"junior securities" means (i) shares of any class of the Company and (ii) other
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article. Nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the right which is absolute and unconditional, of the Holder of any
Security to convert or exchange such Security in accordance with its terms.
ARTICLE 16
SUBMISSION TO JURISDICTION
16.1 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably
designated and appointed CT Corporation System, 1633 Broadway, New York, New
York 10019 as its authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Securities or this Indenture
that may be instituted in any federal or New York state court located in The
City of New York, or brought by the Trustee (whether in its individual capacity
or in its capacity as Trustee hereunder), and acknowledges that CT Corporation
System has accepted such designation and appointment, (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 CT Corporation System
and written notice of said service to the CT Corporation System (mailed or
delivered to the Company, Attention: Terry N. Fiske, at its principal office
at 6400 South Fiddlers Green Circle, Suite 1000, Englewood, Colorado 80111-
4957, shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company
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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 CT Corporation System in full force and
effect so long as this Indenture shall be in full force and effect.
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 such action, suit or proceeding in any such court.
16.2. WAIVER OF IMMUNITIES
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.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 122
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ECHO BAY MINES LTD.
By: /s/ Raymond W. Jenner
---------------------------------
Name: Raymond W. Jenner
SEAL Title: Vice President and
Treasurer
BANKERS TRUST COMPANY, as
Trustee
By: /s/ Susan Johnson
---------------------------------
Name: Susan Johnson
Title: Assistant Vice President
<PAGE> 1
EXHIBIT 4.2
================================================================================
ECHO BAY MINES LTD.
$100,000,000
11% Junior Subordinated Debentures
due 2027
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 27, 1997
BANKERS TRUST COMPANY,
a New York corporation,
as Trustee
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Rules of Construction . . . . . . . . . . . . . . . . . . . 11
ARTICLE II
General Terms and Conditions of the Capital Securities
SECTION 2.01. Designation and Principal Amount . . . . . . . . . . . . . 12
SECTION 2.02. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.03. Global Security . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.04. Interest . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.05. Extension of Interest Payment Period . . . . . . . . . . . 13
SECTION 2.06. Common Shares Payment Election . . . . . . . . . . . . . . 15
ARTICLE III
Redemption
SECTION 3.01. Optional Redemption . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.02. Redemption for Changes in
Canadian Tax Law . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.03. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
Remedies
SECTION 4.01. Events of Default . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
<PAGE> 3
2
<TABLE>
<S> <C> <C>
ARTICLE V
Covenants
SECTION 5.01. Limitation on Indebtedness . . . . . . . . . . . . . . . . 29
SECTION 5.02. Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . 32
SECTION 5.03. Restrictions on Certain Payments . . . . . . . . . . . . . 32
ARTICLE VI
Subordination
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VII
Defeasance and Covenant Defeasance
SECTION 7.01. Defeasance and Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
Supplemental Indentures with Consent of Holders
SECTION 8.01. Supplemental Indentures with Consent of Holders . . . . . . 35
ARTICLE IX
Conversion of Securities
SECTION 9.01. Conversion of Securities . . . . . . . . . . . . . . . . . 35
ARTICLE X
Miscellaneous
SECTION 10.01. Ratification of Indenture . . . . . . . . . . . . . . . . . 35
SECTION 10.02. Trustee Not Responsible for Recitals . . . . . . . . . . . 36
</TABLE>
<PAGE> 4
3
<TABLE>
<S> <C> <C>
SECTION 10.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 10.04. Separability . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 10.05. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 10.06. Successors . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 10.07. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
<PAGE> 5
FIRST SUPPLEMENTAL INDENTURE dated as of March 27,
1997, between ECHO BAY MINES LTD., a corporation duly
incorporated and existing under the laws of Canada, having
its registered office at 2900 ManuLife Place, 10180-101
Street, Edmonton, Alberta T5J 3V5 (the "Company"), and
Bankers Trust Company, a New York corporation, as trustee
(the "Trustee") under the Indenture dated as of March 27,
1997, between the Company and the Trustee (the
"Indenture").
WHEREAS the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
debentures, notes or other evidences of indebtedness to be issued from time to
time in one or more series as might be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its securities to
be known as its 11% Junior Subordinated Debentures due 2027 (the "Capital
Securities"), the form and substance of such Capital Securities and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture; and
WHEREAS the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms and to make the Capital Securities, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
<PAGE> 6
2
NOW THEREFORE, in consideration of the purchase and
acceptance of the Capital Securities by the Holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form and
substance of the Capital Securities and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions. Capitalized terms used but not
defined herein have the meanings assigned to them in the Indenture. The
following terms have the following meanings.
"Bank Credit Facilities" means (i) the Amended and Restated Gold
Bullion Loan Agreement, dated as of August 9, 1996, among Echo Bay Inc., as
Borrower, the Company and certain subsidiaries of the Company, as Guarantors,
the banks thereunder, and the Bank of Nova Scotia, as Agent, (ii) the Loan
Agreement, dated as of April 29, 1994, by and among the Company, as Borrower,
certain subsidiaries of the Company, as Guarantors, and Canadian Imperial Bank
of Commerce, as Lender, and (iii) the Loan Agreement, dated as of April 29,
1994, by and among Echo Bay Inc., as Borrower, the Company and certain
subsidiaries of the Company, as Guarantors, and Canadian Imperial Bank of
Commerce, as Lender, including, in each case, any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, modified, renewed, refunded,
replaced or refinanced, in whole or in part, from time to time (including, for
the avoidance of doubt, with the same or different lenders).
"Borrowing Base" means, as of any date, the aggregate amount of
borrowing limits as of such date determined under the covenants of all bank or
institutional
<PAGE> 7
3
lender credit facilities of the Company and its Subsidiaries (other than
Unrestricted Subsidiaries) that determine such limits on the basis of a
borrowing base or other asset-based calculation that is determined with respect
to the Company's ore reserves (other than ore reserves held by Unrestricted
Subsidiaries).
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in New York City are permitted or
required by applicable law to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability
on the face of a balance sheet of such Person in accordance with GAAP. The
stated maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Capital Securities" means the Capital Securities issued under
this First Supplemental Indenture.
"Consolidated" or "consolidated" means consolidated in accordance
with GAAP, including, to the extent permitted by GAAP, proportionate
consolidation.
"Consolidated Cash Flow Available for Fixed Charges" of the
Company means for any period the aggregate amount of working capital provided
by operations as set forth on the Company's consolidated statement of cash flow
plus, to the extent reflected in the amount of net earnings (loss) set forth on
the Company's consolidated statement of earnings for such period and not added
back in the calculation of working capital provided by operations for such
period, (i) Consolidated Interest Expense of the Company, (ii) Consolidated
Exploration and Development
<PAGE> 8
4
Expense of the Company and (iii) Consolidated Income Tax Expense of the Company
(or minus any recovery); provided that there shall be excluded from the
calculation of Consolidated Cash Flow Available for Fixed Charges, without
duplication, (a) the working capital (or deficiency) from operations of any
Person acquired by the Company or a Restricted Subsidiary of the Company in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (b) the working capital (but not any deficiency) from operations
of any Person not accounted for on a Consolidated (including proportionate
consolidation) basis, except to the extent of the amount of dividends or other
distributions actually paid to the Company or a Restricted Subsidiary by such
Person during such period, (c) the working capital (or deficiency) from
operations of any Unrestricted Subsidiary and (d) the cumulative effect of
changes in accounting principles.
"Consolidated Cash Flow Ratio" of the Company means for any
period the ratio of (i) Consolidated Cash Flow Available For Fixed Charges of
the Company for such period to (ii) the sum of, without duplication, (A)
Consolidated Interest Expense of the Company for such period plus (B) the
annual interest expense (including the amortization of debt discount or
premium) with respect to any Debt of the Company or a Restricted Subsidiary
proposed to be Incurred by the Company or a Restricted Subsidiary, plus (C) the
annual interest expense (including the amortization of debt discount or
premium) with respect to any other Debt of the Company or a Restricted
Subsidiary Incurred by the Company or Restricted Subsidiaries since the end of
such period to the extent not included in Clause (ii)(A) minus (D) Consolidated
Interest Expense of the Company to the extent included in Clause (ii)(A) or
(ii)(C) with respect to any Debt of the Company or a Restricted Subsidiary that
will no longer be outstanding as a result of the Incurrence of the Debt
proposed to be Incurred and the use of the proceeds thereof or that otherwise
has been repaid prior to the date of determination; provided, however, that in
making such computation, the Consolidated Interest Expense of the Company
attributable to interest on any Debt bearing a
<PAGE> 9
5
floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the entire
period; provided further that, in the event the Company or its Restricted
Subsidiaries has made asset dispositions or acquisitions of assets not in the
ordinary course of business (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) during or after such period, such
computation (including the calculation of Consolidated Cash Flow Available for
Fixed Charges and Consolidated Interest Expense) shall be made on a pro forma
basis as if the asset dispositions or acquisitions had taken place on the first
day of such period.
"Consolidated Exploration and Development Expense" of the Company
means for any period the consolidated exploration and development expense of
the Company included in the Company's consolidated statement of earnings for
such period in accordance with GAAP; excluding, however, the portion thereof
that is attributable to an Unrestricted Subsidiary.
"Consolidated Income Tax Expense" of the Company means for any
period the consolidated income tax expense (recovery) of the Company included
in the Company's consolidated statement of earnings for such period in
accordance with GAAP; excluding, however, the portion thereof that is
attributable to an Unrestricted Subsidiary.
"Consolidated Interest Expense" for the Company means for any
period the consolidated interest expense included in the Company's consolidated
statement of earnings (without deduction of interest income) for such period in
accordance with GAAP, including for such period without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Debt discount or premium; (ii) any payments or fees with
respect to letters of credit, bankers acceptances or similar facilities; (iii)
fees with respect to interest rate swap or similar agreements or foreign
currency hedge, exchange or similar agreements; (iv) Preferred Stock dividends
declared
<PAGE> 10
6
and payable in cash; (v) interest (including accrued interest) on the
Securities and any substantially similar securities; and (vi) the portion of
any rental obligation allocable to interest expense; excluding, however, the
portion of such consolidated interest expense (and the portion of each of the
foregoing items (i) through (vi)) that is attributable to an Unrestricted
Subsidiary.
"DTC" means The Depository Trust Company in New York, New York.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business), (v) every
Capital Lease Obligation of such Person, (vi) the amount of all Redeemable
Stock of such Person, (vii) every obligation to pay rent or other payment
amounts of such Person with respect to any Sale and Leaseback Transaction to
which such Person is a party and (viii) every obligation of the type referred
to in Clauses (i) through (vii) of another Person and all dividends of another
Person the payment of which, in either case, such Person has guaranteed or is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any contingent Debt, shall be
the maximum principal amount thereof, (b) any Debt issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP and (c) any
Redeemable
<PAGE> 11
7
Stock, shall be the maximum fixed redemption or repurchase price in respect
thereof.
"First Supplemental Indenture" means the First Supplemental
Indenture dated as of March 27, 1997, between the Company and Bankers Trust
Company, as Trustee.
"Future Development Projects" means mining and milling projects
other than those associated with the currently existing operations commonly
known as Round Mountain, McCoy/Cove, Lupin and Kettle River, and currently
contemplated operations at Aquarius and Paredones Amarillos.
"GAAP" means generally accepted accounting principles in Canada
as in effect on the date of original issuance of the Capital Securities and
applied on a basis consistent with prior periods.
"guarantee" by any Person means any obligations, contingent or
otherwise, of such Person guaranteeing, or giving the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "guarantee", "guaranteeing" and "guarantor" shall have meanings
correlative to the foregoing); provided, however, that the guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by
<PAGE> 12
8
conversion, exchange or otherwise), assume, guarantee or otherwise become
liable in respect of such Debt or other obligation including by acquisition of
Subsidiaries or the recording, as required pursuant to GAAP or otherwise, of
any such Debt or other obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming Debt
shall not be deemed an Incurrence of such Debt.
"Ministerial Action" means an action such as filing a form or
making an election, or pursuing some other reasonable measure, in each case
which has no adverse effect on the Company or the Holders.
"Officer" means the Chairman of the Board or any Co-Chairman of
the Board, the Vice Chairman of the Board, the Chief Executive Officer or any
Co-Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, any
Assistant Controller, the Secretary or any Assistant Secretary of the Company.
"Permitted Hedging Agreement" of any Person means any agreement
entered into with one or more financial institutions in the ordinary course of
business that is designed to reduce costs or protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices and
which reasonably relates to then existing Debt or other financial obligations,
assets then held, commodities used in the business or production of such
Person, and not, in any such case, for purposes of speculation.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation,
<PAGE> 13
9
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Property Account" means a segregated non-interest bearing trust
account, established and maintained by, in the name of and under the exclusive
control of the Trustee as custodian for and on behalf of the Holders, which
account shall be maintained with the Trustee or a banking institution whose
long-term unsecured indebtedness has a rating of at least AAA with Standard &
Poor's Rating Services, or at least Aaa with Moody's Investor Service Inc., or
an equivalent rating assigned by a "nationally recognized statistical rating
organization", as that term is defined for the purposes of Rule 436(g) under
the Securities Act. Funds deposited in the Property Account shall be held
uninvested until disbursed in accordance with this First Supplemental Indenture
and the Indenture.
"Purchase Money Obligations" of any Person means Debt of such
Person secured by a Lien on real or personal property of such Person which Debt
(a) constitutes all or a part of the purchase price or construction cost of
such property or (b) is Incurred prior to, at the time of or within 270 days
after the acquisition or substantial completion of such property for the
purpose of financing all or any part of the purchase price or construction cost
thereof; provided, however, that (w) the Debt so Incurred does not exceed 100%
of the purchase price or construction cost of such property, (x) such Lien does
not extend to or cover any property other than such item of property and any
improvements on such item, (y) the purchase price or construction cost for such
property is or should be included in "addition to property, plant and
equipment" in accordance with GAAP and (z) the purchase or construction of such
property is not part of any acquisition of a Person or business unit or line of
business.
"Redeemable Stock" of any Person means any equity security of
such Person that by its terms or otherwise is required to be redeemed prior to
the final stated maturity of the Capital Securities or is redeemable at the
option of
<PAGE> 14
10
the holder thereof at any time prior to the final stated maturity of the
Capital Securities.
"Restricted Subsidiary" means any Subsidiary of the Company,
whether existing on or after the date of the Indenture, unless such Subsidiary
is an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is
a party providing for the leasing by such Person of any property or asset of
such Person which has been or is being sold or transferred by such Person more
than 270 days after the acquisition thereof or the completion of construction
or commencement of operation thereof to such lender or investor or to any
person to whom funds have been or are to be advanced by such lender or investor
on the security of such property or asset. The stated maturity of such
arrangement shall be the date of the last payment of rent or any other amount
due under such arrangement prior to the first date on which such arrangement
may be terminated by the lessee without payment of a penalty.
"Subsidiary" of any Person means (i) a corporation more than 50%
of the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof, (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof or (iii) any
other Person not described in clauses (i) and (ii) above in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has a 50% ownership and the
power, pursuant to a written contract or agreement, to direct the
<PAGE> 15
11
policies and management or the financial and other affairs thereof.
"United States Government Obligations" means securities which are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally guaranteed by
the full faith and credit of the United States of America which, in either
case, are not callable or redeemable at the option of the issuer thereof or
otherwise subject to prepayment, and shall also include a depository receipt
issued by a New York Clearing House bank or trust company as custodian with
respect to any such United States Government Obligation or a specific payment
of interest on or principal of any such United States Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided, however, 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 or from any amount held by the custodian in respect of the
United States Government Obligation or the specific payment of interest on or
principal of the United States Government Obligation evidenced by such
depository receipt.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as
such by the Board of Directors as set forth below where (a) neither the Company
nor any of its other Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or Guarantee of, any Debt of such Subsidiary
or any Subsidiary of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt) or (ii) is directly or indirectly liable for
any Debt of such Subsidiary or any Subsidiary of such Subsidiary, and (b) no
default with respect to any Debt of such Subsidiary or any Subsidiary of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of
<PAGE> 16
12
any other Debt of the Company and its Subsidiaries (other than another
Unrestricted Subsidiary) to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity and (2) any Subsidiary of an Unrestricted Subsidiary.
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
The following terms are defined in the relevant Section of this
First Supplemental Indenture as set forth below.
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Adjusted Treasury Rate" . . . . . . . . . . . . . . . . . . 3.01
"Capital Stock" . . . . . . . . . . . . . . . . . . . . . . . 3.01
"Cash Equity Sales" . . . . . . . . . . . . . . . . . . . . . 3.01
"Change of Control" . . . . . . . . . . . . . . . . . . . . . 4.01
"Change of Control Notice" . . . . . . . . . . . . . . . . . 4.01
"Change of Control Offer" . . . . . . . . . . . . . . . . . . 4.01
"Change of Control Purchase
Date" . . . . . . . . . . . . . . . . . . . . . . . . 4.01
"Change of Control Purchase
Notice" . . . . . . . . . . . . . . . . . . . . . . . 4.01
"Change of Control Purchase
Price" . . . . . . . . . . . . . . . . . . . . . . . 4.01
"Common Shares Bid Request" . . . . . . . . . . . . . . . . . 2.06
"Common Shares Delivery Date" . . . . . . . . . . . . . . . . 2.06
"Common Shares Election Amount" . . . . . . . . . . . . . . . 2.06
"Common Shares Election Notice" . . . . . . . . . . . . . . . 2.06
"Common Shares Payment Election" . . . . . . . . . . . . . . 2.06
"Common Shares Proceeds
Investment" . . . . . . . . . . . . . . . . . . . . . 2.06
</TABLE>
<PAGE> 17
13
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Common Shares Purchase
Agreement" . . . . . . . . . . . . . . . . . . . . . 2.06
"Comparable Treasury Issue" . . . . . . . . . . . . . . . . . 3.01
"Comparable Treasury Price" . . . . . . . . . . . . . . . . . 3.01
"Continuing Director" . . . . . . . . . . . . . . . . . . . . 4.01
"Deferred Interest" . . . . . . . . . . . . . . . . . . . . . 2.05
"Event of Default" . . . . . . . . . . . . . . . . . . . . . 4.01
"Extension Period" . . . . . . . . . . . . . . . . . . . . . 2.05
"Global Security" . . . . . . . . . . . . . . . . . . . . . . 2.04
"interest" . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . 2.04
"Make-Whole Amount" . . . . . . . . . . . . . . . . . . . . . 3.01
"Net Cash Proceeds" . . . . . . . . . . . . . . . . . . . . . 3.01
"Permitted Debt" . . . . . . . . . . . . . . . . . . . . . . 5.01
"Primary Treasury Dealer" . . . . . . . . . . . . . . . . . . 3.01
"Quotation Agent" . . . . . . . . . . . . . . . . . . . . . . 3.01
"Redemption Tax Event" . . . . . . . . . . . . . . . . . . . 3.02
"Reference Treasury Dealer" . . . . . . . . . . . . . . . . . 3.01
"Reference Treasury Dealer
Quotations" . . . . . . . . . . . . . . . . . . . . . 3.01
"relevant tax law" . . . . . . . . . . . . . . . . . . . . . 3.02
</TABLE>
SECTION 1.02. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
<PAGE> 18
14
(5) provisions apply to successive events and transactions; and
(6) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture.
ARTICLE II
General Terms and Conditions of the Capital Securities
In addition to the provisions contained in Articles 2 and 3 of
the Indenture, the following provisions shall apply to the Company with respect
to the Capital Securities:
SECTION 2.01. Designation and Principal Amount. Pursuant to
Section 3.1 of the Indenture, there is hereby authorized a series of Securities
designated as "11% Junior Subordinated Debentures due 2027" (the "Capital
Securities"). The Capital Securities shall be limited to an aggregate
principal amount for all Capital Securities at any time Outstanding not
exceeding $100,000,000. Capital Securities in the aggregate principal amount
of $100,000,000 may, upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver said Capital Securities to
or upon the written order of the Company, signed by its Chairman, its
President, any Vice President or its Treasurer or an Assistant Treasurer,
without any further action by the Company.
SECTION 2.02. Maturity. The Capital Securities shall mature on
April 1, 2027 (the "Maturity Date").
SECTION 2.03. Global Security. (a) Pursuant to Section 3.1 of
the Indenture, DTC is hereby appointed the Depositary for the Capital
Securities. The Capital Securities will be initially issued only as global
fully registered securities (a "Global Security") registered in
<PAGE> 19
15
the name of the nominee of DTC. One or more fully registered Global Security
certificates, representing the total aggregate number of Capital Securities,
will be issued and will be deposited with DTC.
(b) Pursuant to Section 2.1 of the Indenture, the form of the
Capital Securities shall be as specified in Exhibit A hereto. The form of the
Trustee's Certificate of Authentication shall be as provided in Section 2.5 of
the Indenture.
SECTION 2.04. Interest. (a) Each Capital Security shall bear
interest from the original date of issuance, payable in US dollars, at the rate
of 11% per annum, or 12% per annum during an Extension Period, payable semi-
annually in arrears on April 1 and October 1 of each year, commencing October
1, 1997 (each an "Interest Payment Date") to the person in whose name such
Capital Security is registered, subject to certain exceptions, as of the close
of business on the Business Day next preceding such Interest Payment Date. In
the event any Capital Securities shall not be represented by a Global Security,
the relevant record dates for the payment of interest on the next succeeding
Interest Payment Date for such Capital Securities will be the March 15 or
September 15 next preceding the relevant Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
interest payable for any period shorter than a full semi-annual period for
which interest is computed will be computed on the basis of the actual number
of days elapsed per 30-day month. Accrued interest that is not paid on the
applicable Interest Payment Date (including during an Extension Period) will
bear additional interest on the amount thereof (to the extent permitted by law)
at the rate per annum of 12% thereof, compounded semi-annually and computed on
the basis of a 360-day year of twelve 30-day months and the actual days elapsed
in a partial month in a period. The term "interest" as used herein shall
include semi-annual interest payments, interest
<PAGE> 20
16
on semi-annual interest payments not paid on the applicable Interest Payment
Date and Additional Amounts, as applicable. In the event that any date on
which interest is payable on the Capital Securities is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
SECTION 2.05. Extension of Interest Payment Period. (a) The
Company shall have the right at any time and from time to time, subject to
certain conditions, to defer payments of interest on the Capital Securities by
extending interest payment periods for periods (each, an "Extension Period"),
each not exceeding 10 consecutive semi-annual payment periods (all interest
that shall accrue on the Capital Securities, including, to the extent permitted
by law, interest on interest, during an Extension Period is herein called
"Deferred Interest"); provided that during any Extension Period (i) the Company
shall not declare or pay dividends on, or make a distribution with respect to,
or redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its Capital Stock (other than (a) as a result of an exchange or
conversion of any class or series of the Company's Capital Stock or rights to
acquire such stock for any other class or series of the Company's Capital Stock
or rights to acquire such stock, (b) the purchase of fractional interests in
shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged,
(c) dividends or distributions made on the Company's Capital Stock or rights to
acquire such stock with the Company's Capital Stock or rights to acquire such
stock or (d) purchases of Common Shares related to the issuance of Common
Shares or rights or options under any of the Company's benefit plans for its
directors, officers, employees or other persons within the definition of
"employee" under any employee benefit plan of the Company,
<PAGE> 21
17
or related to the issuance of Common Shares or rights under a dividend
reinvestment plan or stock purchase plan), and (ii) the Company shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities (excluding, for the avoidance of doubt, Senior
Indebtedness, current payables, accrued liabilities, provisions for
reclamation, mine closure and waste rock removal, and income and mining taxes
payable, in respect of which such payments, repayments, repurchase and
redemptions may be made) issued by the Company or any guarantee issued by the
Company that, in either case, rank pari passu with or junior to the Capital
Securities. Prior to the termination of any Extension Period, the Company may
further defer payments of interest by extending the interest payment period on
the Capital Securities; provided, however, that such further Extension Period,
including all such previous and further extensions, may not exceed 10
consecutive semi-annual payment periods and may not extend beyond the maturity
of the Capital Securities. Upon the termination of any Extension Period and
the payment of all Deferred Interest, the Company may commence a new Extension
Period for up to 10 consecutive semi-annual payment periods, subject to the
terms set forth in this section. During an Extension Period, interest on the
Capital Securities will accrue at the rate of 12% per annum, compounded
semi-annually, and holders of Capital Securities will be required to accrue
interest income for United States Federal income tax purposes prior to receipt
of cash related to such interest income. All interest accrued during an
Extension Period shall be paid on the Interest Payment Date at the end of such
Extension Period. No interest payments will be required to be made during an
Extension Period except at the end thereof.
(b) The Company shall give the holders of the Capital Securities
written notice of its initiation of any Extension Period at least ten Business
Days prior to the earlier of (i) the next Interest Payment Date or (ii) the
date upon which the Company is required to give notice to holders of the
Capital Securities of the record date or
<PAGE> 22
18
Interest Payment Date, in each such case with respect to interest payments the
payment of which is being deferred.
SECTION 2.06. Common Shares Payment Election. (a) The Company
may elect, from time to time, to satisfy its obligation to pay any Deferred
Interest on any Interest Payment Date by delivering Common Shares in accordance
with the provisions herein (the "Common Shares Payment Election"). The Trustee
shall in accordance with detailed written procedures set forth in the Common
Shares Election Notice (i) accept delivery of Common Shares from the Company,
(ii) accept bids with respect to, and consummate sales of, such Common Shares,
each as the Company shall direct in its absolute discretion, (iii) invest the
proceeds of such sales in short-term United States Government Obligations,
which mature prior to the applicable Interest Payment Date, and/or use such
proceeds to pay the Deferred Interest, and (iv) perform any other action
necessarily incidental thereto.
(b) The Company shall make a Common Shares Payment Election by
delivering written notice (the "Common Shares Election Notice") to the Trustee
no later than the date required by applicable law or the rules of any stock
exchange on which the Capital Securities are then listed. The Trustee shall,
in accordance with such notice, deliver requests for bids (each a "Common
Shares Bid Request") to investment banks, brokers or dealers selected by the
Company. The Common Shares Election Notice shall direct the Trustee to solicit
and accept only such bids, and the Common Shares Bid Request shall make the
acceptance of any bid conditional on the acceptance of such bids, that together
shall provide for the delivery and sale of Common Shares against payment of the
Common Shares Election Amount on a date (the "Common Shares Delivery Date")
that is no earlier than 180 days and no later than one Business Day prior to
the applicable Interest Payment Date. The Trustee shall accept bids only in
accordance with the procedures set forth in Section 2.06(c) below. The "Common
Shares Election Amount" means an amount of aggregate proceeds, based on the
bids obtained pursuant to the Common Shares Bid Request, of
<PAGE> 23
19
the sale on the Common Shares Delivery Date, of the Common Shares equal to, and
not exceeding, the Deferred Interest payable on such Interest Payment Date as
specified in the Common Shares Election Notice. The Common Shares Election
Notice shall provide for, and all such bids shall be subject to, the right of
the Company, by delivering written notice to the Trustee at any time prior to
the consummation of such delivery and sale on the Common Shares Delivery Date,
to withdraw the Common Shares Payment Election (which will have the effect of
withdrawing the Common Shares Bid Request), whereupon the Company shall be
obligated to pay in cash all Deferred Interest.
(c) The Trustee shall inform the Company promptly following
receipt of any bid or bids for Common Shares. The Trustee shall accept such
bid or bids as the Company (in its absolute discretion) shall direct, provided
that the aggregate proceeds of all such sales (less any amount attributable to
any fractional Common Share), on the Common Shares Delivery Date, must equal
the Common Shares Election Amount. In connection with any bids so accepted,
the Company, the Trustee and the applicable bidders shall, not later than the
Common Shares Delivery Date, enter into customary purchase agreements (in each
case, a "Common Shares Purchase Agreement") and shall comply with all
applicable laws, including the Securities Act, the Exchange Act, the applicable
securities laws of Canada, the rules and regulations of any stock exchange on
which the Common Shares are then listed and the laws, rules and regulations of
any jurisdiction in which the Common Shares may be offered for sale. The
Company shall pay all fees and expenses of the Trustee in connection with the
Common Shares Payment Election and the Common Shares Purchase Agreements.
(d) Provided that (i) all conditions specified in each Common
Shares Purchase Agreement to the closing of all sales thereunder have been
satisfied, other than the delivery of the Common Shares to be sold thereunder
against payment of the Common Shares Election Amount, and (ii) the purchasers
under the Common Shares Purchase Agreements shall be ready, willing and able to
perform thereunder, in each
<PAGE> 24
20
case on the Common Shares Delivery Date, the Company shall, on the Common
Shares Delivery Date, deliver to the Trustee the Common Shares to be sold on
such date and (to the extent any such Common Share would be a fractional share)
cash and an officer's certificate to the effect that all conditions precedent
to such sales, including those set forth in the Indenture and in each Common
Shares Purchase Agreement, have been satisfied. Upon such deliveries, the
Trustee shall consummate such sales on such Common Shares Delivery Date by
delivery of the Common Shares to such purchasers against payment to the Trustee
in immediately available funds of the purchase price therefor in an aggregate
amount equal to the Common Shares Election Amount (less any amount attributable
to any fractional Common Share), whereupon the sole right of a holder of a
Capital Security in respect of such Deferred Interest will be to the delivery
of such proceeds by the Trustee in full satisfaction of such Deferred Interest,
and the holder of such Capital Securities will have no further recourse to the
Company in respect of such Deferred Interest (it being understood that the
Company's obligation to pay Deferred Interest in cash shall only be discharged
upon satisfaction of such conditions).
(e) The Trustee shall, in accordance with detailed written
instructions signed by an officer of the Company, use the sale proceeds of the
Common Shares (together with any cash received from the Company in respect of
any fractional Common Share) to purchase short-term United States Government
Obligations, which mature prior to the applicable Interest Payment Date, and
which the Trustee is required to hold until maturity (the "Common Shares
Proceeds Investment") on the Common Shares Delivery Date and shall on such date
deposit the excess amount realized, if any, in the respective Property Account
for such Capital Securities. The Trustee shall hold the Common Shares Proceeds
Investment under its exclusive control and shall hold such investments in an
irrevocable trust for the benefit of the holders of the Capital Securities.
One Business Day prior to the applicable Interest Payment Date, the Trustee
shall deposit amounts from the proceeds of the Common Shares Proceeds
Investment in the Property Account to
<PAGE> 25
21
bring the balance of the Property Account to the Common Shares Election Amount.
On such Interest Payment Date, the Trustee shall apply the funds held in the
Property Account to payment of Deferred Interest to the holders of record of
the Capital Securities on the record date and shall remit amounts, if any, in
respect of income earned on the Common Shares Proceeds Investment or otherwise
in excess of the Common Shares Election Amount to the Company.
(f) The Company shall indemnify and hold harmless the Trustee
(and its officers, directors, employees and agents) and (on an after-tax basis)
the holders of Capital Securities and any person who controls any such holder
within the meaning of any applicable securities laws, from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any such person in connection
with defending or investigating any such action or claim) caused by or arising
in connection with any Common Shares Payment Election or any withdrawal
thereof, except in each case for any losses, claims, damages or liabilities
caused by any such person's gross negligence or wilful misconduct. This
indemnification shall survive the termination of this First Supplemental
Indenture or the earlier resignation or removal of the Trustee. If the
indemnification provided for in this paragraph shall be unavailable to an
indemnified person or insufficient in respect of any losses, claims, damages or
liabilities referred to, then the Company shall contribute to the amount paid
or payable by such indemnified person as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the Company and such indemnified person and any other
equitable considerations.
(g) Notwithstanding the foregoing, the Company shall not be
permitted to satisfy its obligations to pay Deferred Interest with respect to
the Capital Securities through the delivery of Common Shares if, on the Common
Shares Delivery Date, the Common Shares to be delivered are not then listed on
The Toronto Stock Exchange, the American
<PAGE> 26
22
Stock Exchange or any other significant stock exchange in Canada or the United
States on which the Common Shares are then listed.
(h) Neither the Company's making of a Common Shares Payment
Election nor the consummation of sales of Common Shares on the Common Shares
Delivery Date will (i) result in the holders of the Capital Securities not
receiving on the applicable Interest Payment Date cash in an aggregate amount
equal to the Deferred Interest payable on such Interest Payment Date, or (ii)
entitle such holders to receive any Common Shares in satisfaction of the
Company's obligation to pay such Deferred Interest.
(i) the Trustee shall have no liability in connection with (a)
the receipt, calculation or sufficiency of the Common Shares Election Amount,
(b) any losses in connection with a Common Shares Proceeds Investment, (c) the
compliance of a Common Shares Purchase Agreement, or the negotiations related
thereto, to the Securities Act, the Exchange Act, the applicable securities
laws of Canada, the rules and regulations of any stock exchange on which the
Common Shares are then listed and the laws, rules and regulations of any
jurisdiction in which the Common Shares may be offered for sale, (d) the
failure to consummate any Common Shares Purchase Agreement, and (e) any failure
to act prior to or receiving the written notices provided for in this Section
2.06.
The foregoing obligations shall survive any termination,
defeasance or discharge of the Indenture.
<PAGE> 27
23
ARTICLE III
Redemption
SECTION 3.01. Optional Redemption. In addition to the
provisions contained in Article 11 of the Indenture, the following provisions
shall apply to the Company with respect to the Capital Securities:
(a) The Capital Securities are redeemable prior to their
maturity at the option of the Company on or after April 1, 2007 in whole at any
time or in part from time to time, at the following prices expressed in
percentages of the principal amount, together with accrued and unpaid interest
thereon (including any Deferred Interest) up to but excluding the Redemption
Date, if redeemed during the 12-month period beginning on April 1 of the years
indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- ------
<S> <C>
2007 105.5%
2008 104.4
2009 103.3
2010 102.2
2011 101.1
and at 100% on or after April 1, 2012.
</TABLE>
(b) At any time on or after April 1, 2002, and prior to April 1,
2007, the Company may use the Net Cash Proceeds from one or more Cash Equity
Sales of the Company to redeem either (i) up to 40% of the aggregate original
principal amount of the Capital Securities or (ii) 100% of the aggregate
principal amount of the Capital Securities then Outstanding at the following
prices expressed in percentages of the principal amount, together with accrued
and unpaid interest thereon (including any Deferred Interest) up to but
excluding the Redemption Date, if
<PAGE> 28
24
redeemed during the 12-month period beginning on April 1 of the years indicated
below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- -----
<S> <C>
2002 105.5%
2003 104.5
2004 103.5
2005 102.5
2006 101.5
</TABLE>
"Cash Equity Sales" means any sale of Capital Stock of the Company
(other than Redeemable Stock) occurring after the date of original
issuance of the Capital Securities for which the Company receives cash
consideration.
"Capital Stock" of any Person means any and all shares, interests,
participation or other equivalents (however designated) of corporate
stock, equity shares or other equity participation, including partnership
interests, whether general or limited, of such Person.
"Net Cash Proceeds" means the aggregate amount of cash proceeds
received from a sale of Capital Stock less, to the extent paid or
payable, all underwriting discounts and commissions with respect thereto.
(c) Prior to April 1, 2007, the Capital Securities will be
redeemable by the Company, in whole or in part, at any time and from time to
time, at an amount equal to the Make-Whole Amount, plus accrued and unpaid
interest thereon (including any Deferred Interest) to the Redemption Date.
"Make-Whole Amount" means, with respect to any Capital Securities
to be redeemed, an amount equal to the greater of (i) the redemption
price for such Capital Securities on April 1, 2007 as specified in
Section 3.01(a) above and (ii) as determined by a
<PAGE> 29
25
Quotation Agent, the sum of (x) the present values of the scheduled
payments of interest on the Capital Securities through April 1, 2007
(without giving effect to any Extension Period (and without duplication
of any accrued and unpaid interest)) plus (y) the present value of
105.5% of the principal amount of the Capital Securities at April 1,
2007, discounted, in each case, to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate.
"Adjusted Treasury Rate" means, with respect to any prepayment
date, the rate per annum equal to the semi-annual bond equivalent yield
to maturity of the Comparable Treasury Issue (as defined herein),
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury
Price (as defined herein) for such prepayment date, plus 0.75%.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable
to April 1, 2007 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of the Capital Securities.
"Quotation Agent" means the Reference Treasury Dealer appointed
by the Trustee for this purpose after consultation with the Company.
"Reference Treasury Dealer" means: (i) Goldman, Sachs & Co. and
its successors; provided, however, that the foregoing remain a primary
US Government securities dealer in New York City (a "Primary Treasury
Dealer") and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
<PAGE> 30
26
"Comparable Treasury Price" means, with respect to any prepayment
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such prepayment date, as set
forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations of US Government Securities" or (ii) if
such release (or any successor release) is not published or does not
contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any prepayment date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business
Day preceding such prepayment date.
SECTION 3.02. Redemption for Changes in Canadian Tax Law. The
Capital Securities may be redeemed, at the option of the Company, at any time
in whole but not in part, on not less than 30 days and not more than 60 days
prior written notice, at 100% of the principal amount of the Capital Securities
plus accrued and unpaid interest thereon (including any Deferred Interest) on
the date of such redemption, on or after the 91st day following the occurrence
and during the continuance of a Redemption Tax Event if within the 90-day
period following such Redemption Tax Event, the Company is unable to avoid the
adverse effects of such Redemption Tax Event by taking some
<PAGE> 31
27
Ministerial Action or pursuing some other reasonable measure that will have no
adverse effect on the Company or the holder of the Capital Securities. A
"Redemption Tax Event" means that the Company shall have delivered to the
Trustee an opinion of a nationally recognized independent Canadian tax counsel
experienced in such matters to the effect that a relevant tax law change (as
defined in the next sentence) has occurred. A "relevant tax law" change is (i)
any amendment to or change (including any announced prospective change) in the
laws (or any regulations thereunder) of Canada or any political subdivision or
taxing authority thereof or therein, as applicable, or (ii) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision
or regulatory determination), in either case, which is announced or becomes
effective after the date of the Indenture and as a result of which (assuming
that such amendment or change is enacted or is applied to the Company), there
is more than an insubstantial risk that (i) the Company could become liable to
pay, on the next date on which any amount would be payable with respect to the
Capital Securities, any Additional Amounts (which are more than a de minimis
amount), or (ii) the Company could be denied the deduction of interest paid or
payable in respect of the Capital Securities in computing its income for the
purpose of the Income Tax Act or a provincial income tax statute.
SECTION 3.03. No Sinking Fund. The Capital Securities are not
entitled to the benefits of any sinking fund. Accordingly, Article 12 of the
Indenture shall be inapplicable to the Capital Securities.
<PAGE> 32
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ARTICLE IV
Remedies
SECTION 4.01. Events of Default. The provisions of Article 5 of
the Indenture shall apply to the Capital Securities; provided, however, that
for purposes of the Capital Securities issued hereunder, (i) the first
paragraph of Section 5.1 of the Indenture shall be replaced, in its entirety,
with the following paragraph:
"Event of Default", wherever used with respect to the Securities,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) failure for 30 days to pay interest on the Securities in cash
when due (including pursuant to Section 2.06 of the First Supplemental
Indenture); provided that a valid extension of an interest payment
period by the Company pursuant to Section 2.05 of the First Supplemental
Indenture shall not constitute a default in the payment of interest for
this purpose;
(b) failure to pay principal or premium, if any, on the
Securities when due whether at maturity, upon redemption, by
declaration, upon the valid tender of Capital Securities pursuant to a
Change of Control Offer or otherwise;
(c) the occurrence of a Change of Control, unless cured pursuant
to Section 5.16;
(d) failure to observe or perform any other covenant contained in
the First Supplemental Indenture or the Indenture for 60 days after
written notice thereof to the Company from the Trustee or the holders of
at least 25% in principal amount of the Outstanding Securities;
<PAGE> 33
29
(e) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada) or
the Winding-Up Act (Canada) or any other bankruptcy, insolvency,
reorganization or similar law, or (ii) a decree or order 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 any applicable Canadian or provincial law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief specified in this clause (ii) unstayed and in effect
for a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act (Canada) or
any other bankruptcy, insolvency, reorganization or similar law, or of
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by the Company to the entry of a decree or order for
relief in respect of the Company in an involuntary case or proceeding
under the Companies' Creditors Arrangement Act (Canada), the Bankruptcy
and Insolvency Act (Canada) or the Winding-Up Act (Canada) or any other
bankruptcy, insolvency, reorganization or similar law, or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Canadian
or provincial law, or the consent by it to the filing of such petition
or to the appointment of or taking possession by a custodian,
<PAGE> 34
30
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by the Company of an assignment for the benefit of creditors,
or the admission by the Company in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action;
(ii) new third and fourth paragraphs to Section 5.1 of the
Indenture shall be added as follows:
"Change of Control" means the occurrence of one or more of the
following events (whether or not approved by the Board of Directors of the
Company): (a) an event or series of events by which any Person or group of
Persons within the meaning of Section 13(d) of the Exchange Act shall, as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases, merger, consolidation, issuances of securities by the
Company or otherwise, be or become, directly or indirectly, the beneficial
owner (within the meaning of Rule 13d-3 and Rule 13d-5 under the Exchange Act,
whether or not applicable, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time) of 50% or more of the combined voting power of the then
outstanding voting stock of the Company, (b) the first day on which a majority
of the members of the Board of Directors of the Company are not Continuing
Directors, (c) the stockholders of the Company shall approve any plan or
proposal for the liquidation or dissolution of the Company or (d) the direct or
indirect sale, assignment, lease, exchange, disposition or other transfer, in
one transaction or a series of related transactions, of all or substantially
all of the property or assets of the Company to any Person.
"Continuing Director" means any member of the Board of Directors
of the Company who was a member of such Board of Directors on the date of
original issuance of the
<PAGE> 35
31
Capital Securities, and, as of any determination date thereafter, shall include
any member of the Board of Directors of the Company who was nominated for
election or appointed to such Board of Directors with the affirmative vote of a
majority of the Continuing Directors who were members of such Board at the time
of such nomination or appointment;
(iii) the reference to "clause 5.1(f) or 5.1(g)" in the first
paragraph of Section 5.2 of the Indenture shall be replaced with the following:
"clause 5.1(e) or 5.1(f)"; and
(iv) a new Section 5.16 of the Indenture shall be added as
follows:
5.16. Change of Control Offer
(a) The Securities may not be accelerated pursuant to Section
5.2 following an Event of Default under Section 5.1(c) and such Event of
Default shall be cured if the Company complies with the provisions of
this Section 5.16. In order to cure such Event of Default, the Company
shall be required to offer to repurchase (the "Change of Control Offer")
the Outstanding Securities pursuant to the offer described in paragraph
(b) below, at a purchase price (the "Change of Control Purchase Price")
in cash equal to 101% of the aggregate principal amount thereof plus any
accrued and unpaid interest thereon (including any Deferred Interest) to
the Change of Control Purchase Date (as defined below).
(b) Within 10 Business Days following the occurrence of a Change
of Control, the Company must send, by first class mail, a notice (a
"Change of Control Notice") to each Holder, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The
Company shall also cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business
news service in the United States. The Change
<PAGE> 36
32
of Control Notice shall contain all instructions and materials necessary
to enable the Holders to tender Securities pursuant to the Change of
Control Offer. Such Change of Control Notice shall state:
(1) that a Change of Control has occurred and that such
Holder has the right to cause the repurchase of its Securities at
the Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such
Change of Control (including relevant information with respect to
the transaction giving rise to such Change of Control) and the
date such Change of Control occurred;
(3) the procedures a Holder must follow in order to accept
the Change of Control Offer;
(4) the Change of Control Purchase Price and the purchase
date, which shall be no earlier than 30 days nor later than 60
days from the date the Change of Control Notice is mailed (the
"Change of Control Purchase Date"), and that the Change of
Control Offer will remain open from the time such offer is made
until the close of business on the Change of Control Purchase
Date;
(5) that the Change of Control Offer is being made
pursuant to this Section 5.16(b) and that all Securities properly
tendered pursuant to the Change of Control Offer will be accepted
for payment;
(6) the date by which the Change of Control Purchase
Notice pursuant to this Section 5.16 must be given by a Holder;
(7) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 10.2;
<PAGE> 37
33
(8) that Securities must be surrendered to the Paying
Agent at the office of the Paying Agent or to an office or agency
referred to in Section 10.2 to collect payment;
(9) that the Change of Control Purchase Price for any
Security as to which a Change of Control Purchase Notice has been
duly given by a Holder and not withdrawn will be paid promptly
upon the later of the first Business Day following the Change of
Control Purchase Date and the time of surrender of such Security
as described in (8); and
(10) the procedures for withdrawing a Holder's Change of
Control Purchase Notice.
(c) A Holder may accept a Change of Control Offer by delivering
to the Paying Agent at the office of the Paying Agent or to an office or
agency referred to in Section 10.2 a written notice (a "Change of
Control Purchase Notice") at any time prior to the close of business on
the Change of Control Purchase Date, stating:
(1) that such Holder elects to have a Security purchased
pursuant to the Change of Control Offer;
(2) the principal amount of the Security that the Holder
elects to have purchased by the Company, which amount must be
U.S.$1,000 or an integral multiple thereof, and the certificate
numbers of the Securities to be delivered by such Holder for
purchase by the Company; and
(3) that such Security shall be purchased on the Change of
Control Purchase Date pursuant to the terms and conditions
specified in this Indenture.
<PAGE> 38
34
The delivery of such Security (together with all necessary
endorsements) to the Paying Agent at the office of the Paying Agent or
to an office or agency referred to in Section 10.2 prior to, on or after
the Change of Control Purchase Date shall be a condition to the receipt
by the Holder of the Change of Control Purchase Price therefor; provided
that such Change of Control Purchase Price shall be so paid pursuant to
this Section 5.16 only if the Security so delivered to the Paying Agent
or to an office or agency referred to in Section 10.2 shall conform in
all respects to the description thereof set forth in the related Change
of Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to
this Section 5.16, a portion of a Security if the principal amount of
such portion is U.S.$1,000 or an integral multiple of U.S.$1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of a portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 5.16 shall be consummated by the delivery of
the consideration to be received by the Holder promptly upon the later
of (a) the first Business Day following the Change of Control Purchase
Date and (b) the time of delivery of the Security by the Holder to the
Paying Agent or to an office or agency referred to in Section 10.2 in
the manner required by this Section 5.16.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent, at the office of the Paying Agent or an
office or agency referred to in Section 10.2, the Change of Control
Purchase Notice contemplated by this Section 5.16(c) shall have the
right to withdraw such Change of Control Purchase Notice at any time
prior to the close of business on the Change of Control Purchase Date by
delivery of a written notice of withdrawal to the
<PAGE> 39
35
Paying Agent or to an office or agency referred to in Section 10.2.
The Paying Agent or the office or agency referred to in Section
10.2 shall promptly notify the Company of the receipt by the former of
any Change of Control Purchase Notice or written notice of withdrawal
thereof.
(d) The Company will comply with the requirements of Section
14(e) of the Exchange Act, if applicable, the provisions of Rule 13e-4
and Rule 14e-1, if applicable, and any other tender offer rules under
the Exchange Act or other relevant Canadian or United States federal,
provincial and state securities legislation which may then be applicable
and will file Schedule 13E-4 or Schedule 13E-4F or any other schedule
required thereunder in connection with any offer by the Company to
purchase Securities upon a Change of Control.
ARTICLE V
Covenants
In addition to the covenants contained in Article 10 of the
Indenture, the following covenants shall apply to the Company with respect to
the Capital Securities:
SECTION 5.01. Limitation on Indebtedness. (a) The Company will
not Incur any Debt, and will not permit any Restricted Subsidiary of the
Company to Incur any Debt, unless, immediately after giving effect to the
incurrence of any such Debt and the receipt and application of the proceeds
thereof, the Consolidated Cash Flow Ratio for the four full fiscal quarters for
which quarterly or annual financial statements are available next preceding the
incurrence of such Debt, calculated on a pro forma basis as if such Debt had
been Incurred at the beginning of such four full fiscal quarters, would be
greater than 2.5 to 1.
<PAGE> 40
36
(b) Notwithstanding the foregoing limitations, the Company or a
Restricted Subsidiary may Incur any of the following (collectively, "Permitted
Debt"):
(i) Debt (A) under the Company's Bank Credit Facilities in an
aggregate principal amount at any time outstanding not to exceed $125
million (including the U.S. dollar equivalent on the date of Incurrence
of any amounts borrowed in another currency or in a commodity) and (B)
under one or more bank credit facilities of the Company and its
Restricted Subsidiaries in an aggregate principal amount at any time
outstanding not to exceed $111 million (including the U.S. dollar
equivalent on the date of Incurrence of any amounts borrowed in another
currency) to finance the development and construction of the Aquarius
and Paredones Amarillos mines;
(ii) Debt under one or more credit facilities with banks,
including commercial banks, development banks, export credit agencies
and similar institutions which, together with any Debt Incurred under
the foregoing clause (i), does not exceed the Borrowing Base at the time
such Debt is Incurred, provided that the proceeds of any borrowing under
this clause (ii) shall be used for the acquisition, exploration,
development and construction of mining and milling properties and
related equipment at Future Development Projects;
(iii) Capital Lease Obligations and Purchase Money Obligations
Incurred in respect of assets acquired after the date of original
issuance of the Capital Securities, as the same may from time to time be
amended, restated, or refinanced, provided that the aggregate principal
amount of Debt at any time outstanding pursuant to this clause (iii)
shall not exceed $40 million (including the U.S. dollar equivalent on
the date of Incurrence of all amounts Incurred in another currency or in
a commodity);
<PAGE> 41
37
(iv) Debt Incurred by a Person prior to the time (A) such Person
became a Restricted Subsidiary of the Company or (B) such Person is
amalgamated, merged or consolidated with or into the Company or a
Restricted Subsidiary of the Company, which Debt was not Incurred in
anticipation of such transaction and was outstanding prior to such
transaction, provided that after giving pro forma effect in the
calculation of Consolidated Cash Flow Available for Fixed Charges,
Consolidated Interest Expense, Consolidated Exploration and Development
Expense and Consolidated Tax Expense to (x) such transaction and (y) any
refinancing of Debt that occurs concurrently with such transaction, and
treating any Debt of such acquired Person as having been Incurred at the
time of such transaction, the Company could Incur at least $1.00 of
additional Debt pursuant to the ratio test specified in Section 5.01(a);
(v) Debt (A) in respect of performance, surety or appeal bonds
provided in the ordinary course of business and not in connection with
the borrowing of money, including letters of credit or letters of
guarantee securing obligations of the Company or a Restricted Subsidiary
relating to the closure, reclamation or rededication of current or past
operations and (B) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or a Restricted Subsidiary
pursuant to such agreements, in any case Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary of the
Company and not exceeding the gross proceeds therefrom (excluding,
however, guarantees of Debt Incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary of the Company
for the purpose of financing such acquisition);
<PAGE> 42
38
(vi) Debt consisting of Permitted Hedging Agreements;
(vii) the Capital Securities; and
(viii) Debt which is exchanged for or the proceeds of which are
used to refinance or refund, or any extension or renewal of (x) any Debt
outstanding on the date of original issuance of the Capital Securities
(other than Debt proposed to be repaid with the proceeds of the sale of
the Capital Securities) or (y) Debt Incurred pursuant to Section 5.01(a)
or clauses (i)(B), (ii), (iv), (vii) or this clause (viii) of this
Section 5.01(b) (each of the foregoing in clause (x) or (y), a
"refinancing") in an aggregate principal amount not to exceed the
principal amount of the Debt so refinanced plus the amount of any
premium required to be paid in connection with such refinancing pursuant
to the terms of the Debt so refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus the expenses of the Company or the Restricted
Subsidiary, as the case may be, Incurred in connection with such
refinancing; provided, however, that (A) Debt the proceeds of which is
used to refinance the Capital Securities or Debt which is pari passu to
the Capital Securities or subordinated to the Capital Securities shall
only be permitted if (x) in the case of any refinancing of the Capital
Securities or Debt which is pari passu to the Capital Securities, the
refinancing Debt is made pari passu to the Capital Securities or
subordinated to the Capital Securities and (y) in the case of any
refinancing of Debt which is subordinated to the Capital Securities, the
refinancing Debt is subordinated to the Capital Securities; and (B) the
refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (1) does not provide
for payments of principal of such Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or
<PAGE> 43
39
repurchase thereof (including any redemption, defeasance, retirement or
repurchase which is contingent upon events or circumstances, but
excluding any retirement required by virtue of acceleration of such Debt
upon any event of default thereunder), in each case prior to the stated
maturity of the Debt being refinanced and (2) does not permit redemption
or other retirement (including pursuant to an offer to purchase) of such
Debt at the option of the holder thereof prior to the final stated
maturity of the Debt being refinanced, other than a redemption or other
retirement at the option of the holder of such Debt (including pursuant
to an offer to purchase) which is conditioned upon provisions
substantially similar to those described in Section 5.16 of the
Indenture, as supplemented by the First Supplemental Indenture, or a
requirement to make an offer to purchase following a sale of assets.
SECTION 5.02. Unrestricted Subsidiaries. (a) The Company may
designate any Subsidiary of the Company to be an Unrestricted Subsidiary, in
which event such Subsidiary and each other Person that is then or thereafter
becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted
Subsidiary; provided, that such Subsidiary would satisfy the definition of
Unrestricted Subsidiary, and provided further, that the Board of Directors may
designate any Subsidiary to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any lien on any property
of, any other Subsidiary of the Company which is not a Subsidiary of the
Subsidiary to be so designated or otherwise an Unrestricted Subsidiary,
provided, that immediately after giving effect to such designation, the Company
could Incur at least $1.00 of additional Debt pursuant to the ratio test
specified in Section 5.01(a).
(b) The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, that immediately after
giving effect to such designation, (i) no Event of Default or event that with
the
<PAGE> 44
40
passing of time or the giving of notice, or both, would constitute an Event of
Default shall have occurred and be continuing; and (ii) the Company could Incur
at least $1.00 of additional Debt pursuant to the ratio test specified in
Section 5.01(a).
(c) Any designation by the Board of Directors pursuant to this
Section 5.02 shall be evidenced by filing with the Trustee a certified copy of
the resolution of the Board of Directors giving effect to such designation and
an officers' certificate certifying that such designation complies with the
foregoing conditions.
SECTION 5.03. Restrictions on Certain Payments. The Company
will not, and will not permit any Restricted Subsidiary of the Company to (i)
declare or pay dividends on, or make a distribution with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of the
Company's Capital Stock (other than (a) as a result of an exchange or
conversion of any class or series of the Company's Capital Stock or rights to
acquire such stock for any other class or series of the Company's Capital Stock
or rights to acquire such stock, (b) the purchase of fractional interests in
shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged,
(c) dividends or distributions made on the Company's Capital Stock or rights to
acquire such stock with the Company's Capital Stock or rights to acquire such
stock or (d) purchases of Common Shares related to the issuance of Common
Shares or rights or options under any of the Company's benefit plans for its
directors, officers, employees or other persons within the definition of
"employee" for purposes of registration of shares of an employee benefit plan
of the Company, related to the issuance of Common Shares or rights under a
dividend reinvestment plan or stock purchase plan), and (ii) make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities (excluding, for the avoidance of doubt, Senior
Indebtedness, current payables, accrued liabilities, provisions for
reclamation,
<PAGE> 45
41
mine closure and waste rock removal, and income and mining taxes payable, in
respect of which such payments, repayments, repurchase and redemptions may be
made) issued by the Company or any guarantee issued by the Company that, in
either case, rank pari passu with or junior to the Capital Securities, if at
such time (x) there shall have occurred any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an "Event of Default" with respect to the Capital
Securities and (b) in respect of which the Company shall not have taken
reasonable steps to cure, or (y) the Company shall have given notice of its
selection of an Extension Period as provided in Section 2.05 with respect to
the Capital Securities and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
ARTICLE VI
Subordination
SECTION 6.01. Subordination. The provisions of Article 15 of
the Indenture shall apply to the Capital Securities.
ARTICLE VII
Defeasance and Covenant Defeasance
SECTION 7.01. Defeasance and Covenant Defeasance. The
provisions of Article 13 of the Indenture shall apply to the Capital
Securities; provided, however, that for purposes of the Capital Securities
issued hereunder (i) Section 13.3
<PAGE> 46
42
of the Indenture shall be replaced, in its entirety, with the following:
"13.3 Covenant Defeasance
Upon the exercise by the Company of the option provided in
Section 13.1 to have this Section 13.3 applied to the Outstanding
Securities of any Defeasible Series, (a) the Company shall be released
from its obligations under Sections 10.5 through 10.7, inclusive, and
under any other covenant to which the Company is subject with respect to
such series of Securities by virtue of Section 3.1(r) and Section 8.1
and (b) the occurrence of any event specified in Section 5.1(d) (with
respect to any of Section 10.5 through 10.7 inclusive and any other
covenant to which the Company is subject with respect to such series of
Securities by virtue of Section 3.1(r) and Section 8.1) shall be deemed
not to be or result in an Event of Default, in each case with respect to
the Outstanding Securities of such series as provided in this Section on
and after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.1 (d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be unaffected
thereby."
and (ii) Section 13.4(e) of the Indenture shall be replaced, in its entirety,
with the following:
"(e) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of
<PAGE> 47
43
Default shall have occurred and be continuing at the time of such
deposit or, with regard to any Event of Default or any such event
specified in Sections 5.1(e) and 5.1(f), at any time on or prior
to the 123rd day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
after such 123rd day)."
ARTICLE VIII
Supplemental Indentures with Consent of Holders
SECTION 8.01. Supplemental Indentures with Consent of Holders.
The provisions of Article 9 of the Indenture shall apply to the Capital
Securities; provided, however, that for purposes of the Capital Securities
issued hereunder, the following phrase shall be added to Section 9.2(a) of the
Indenture after the words "or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof" in such
paragraph (a):
"or reduce the amount payable pursuant to a Change of Control
Offer,"
ARTICLE IX
Conversion of Securities
SECTION 9.01. Conversion of Securities. The provisions of
Article 14 of the Indenture shall be inapplicable to the Capital Securities.
<PAGE> 48
44
ARTICLE X
Miscellaneous
SECTION 10.01. Ratification of Indenture. The Indenture, as
supplemented by this First Supplemental Indenture, is in all respects ratified
and confirmed, and this First Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided. To
the extent any provision of the First Supplemental Indenture differs from that
of the Indenture, the provision contained in the First Supplemental Indenture
shall supersede the provision contained in the Indenture.
SECTION 10.02. Trustee Not Responsible for Recitals. The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 10.03. Governing Law. This First Supplemental Indenture
and each Capital Security shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State.
SECTION 10.04. Separability. In case any one or more of the
provisions contained in this First Supplemental Indenture or in the Capital
Securities shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this First Supplemental Indenture or of the
Capital Securities, but this First Supplemental Indenture and the Capital
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 10.05. Counterparts. This First Supplemental Indenture
may be executed in any number of
<PAGE> 49
45
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.06. Successors. All agreements of the Company in
this First Supplemental Indenture and the Capital Securities shall bind its
successor. All agreements of the Trustee in this First Supplemental Indenture
shall bind its successor.
SECTION 10.07. Assignment. The Company will have the right at
all times to assign any of its rights or obligations under this First
Supplemental Indenture and the Capital Securities to a direct or indirect
wholly owned subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain jointly and severally liable for all such
obligations. Subject to the foregoing, this First Supplemental Indenture will
be binding upon and inure to the benefit of the parties thereto and their
respective successors and assigns. This First Supplemental Indenture may not
otherwise be assigned by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
ECHO BAY MINES LTD.
by /s/ Raymond W. Jenner
-------------------------------
Name: Raymond W. Jenner
Title: Vice President and
Treasurer
[Seal]
BANKERS TRUST COMPANY,
as Trustee,
by /s/ Susan Johnson
-------------------------------
Name: Susan Johnson
Title: Assistant Vice President
<PAGE> 50
STATE OF )
) ss.:
COUNTY OF )
On the 27th day of March, 1997, before me personally came Raymond
W. Jenner to be known, who, being by me duly sworn, did depose and say that he
is the Vice President and Treasurer of Echo Bay Mines Ltd., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Mary Ann Skobla
-------------------------------------
Notary Public
[Notarial Seal] Commission Expires
June 30, 1997
-------------------------------------
<PAGE> 51
STATE OF )
) ss.:
COUNTY OF )
On the 27th day of March, 1997, before me personally came Susan
Johnson to be known, who, being by me duly sworn, did depose and say that she is
the Assistant Vice President of Bankers Trust Company, one of the corporations
described in and which executed the above instrument; that she knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that she signed her name thereto by like
authority.
/s/ Mary Ann Skobla
-------------------------------------
Notary Public
[Notarial Seal] Commission Expires
June 30, 1997
-------------------------------------
<PAGE> 1
EXHIBIT 4.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
ECHO BAY MINES LTD.
11% Capital Securities due 2027
No. G-1 U.S. $100,000,000
CUSIP No. 278751 AA 0
ECHO BAY MINES LTD., a corporation duly incorporated and existing under
the laws of Canada (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Million United States Dollars on April 1, 2027,
and to pay interest thereon from March 27, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on April 1 and October 1 in each year, commencing October 1,
1997, at the rate of 11% per annum, or 12% per annum during an Extension
Period, until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 12% per annum on any overdue principal and premium and on any
overdue instalment of interest, from the dates such amounts are due until they
are paid or made available for payment. The interest so payable, and
punctually paid or
<PAGE> 2
2
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Business
Day next preceding such Interest Payment Date. In the event any Securities
shall not be represented by a Global Security, the relevant record dates for
the payment of interest on the next succeeding Interest Payment Date for such
Securities will be the March 15 or September 15 next preceding the relevant
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of principal of (and premium, if any) and interest on this
Security will be made to the Depositary or its nominee, as the case may be, as
the registered owner or Holder of such Global Security, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 3
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 27, 1997
-----------------------
ECHO BAY MINES LTD.
By /s/ Raymond W. Jenner
-----------------------------
Name: Raymond W. Jenner
Title: Vice President and
Treasurer
<PAGE> 4
4
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Trustee,
By /s/ Susan Johnson
----------------------------
Authorized Signatory
<PAGE> 5
5
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under the Indenture, dated as of March 27, 1997, as supplemented by
the First Supplemental Indenture, dated as of March 27, 1997 (collectively, the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate amount to U.S.
$100,000,000.
Each Security shall bear interest from March 27, 1997, payable in US
dollars, at the rate of 11% per annum, or 12% per annum during an Extension
Period, payable semi-annually in arrears on April 1 and October 1 of each year,
commencing October 1, 1997 (each an "Interest Payment Date") to the person in
whose name such Security is registered, subject to certain exceptions, as of
the close of business on the Business Day next preceding such Interest Payment
Date. In the event any Securities shall not be represented by a Global
Security, the relevant record dates for the payment of interest on the next
succeeding Interest Payment Date for such Securities will be the March 15 or
September 15 next preceding the relevant Interest Payment Date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full semi-annual period for which
interest is computed will be computed on the basis of the actual number of days
elapsed per 30-day month. Accrued interest that is not paid on the applicable
Interest Payment Date (including during an Extension Period)
<PAGE> 6
6
will bear additional interest on the amount thereof (to the extent permitted by
law) at the rate per annum of 12% thereof, compounded semi-annually and
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in a period. The term "interest" as used
herein shall include semi-annual interest payments, interest on semi-annual
interest payments not paid on the applicable Interest Payment Date and
Additional Amounts, as applicable. In the event that any date on which
interest is payable on the Securities is not a Business Day, then payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, then such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
The Company shall have the right at any time and from time to time,
subject to certain conditions, to defer payments of interest on the Securities
by extending interest payment periods for periods (each, an "Extension
Period"), each not exceeding 10 consecutive semi-annual payment periods (all
interest that shall accrue on the Securities, including, to the extent
permitted by law, interest on interest, during an Extension Period is herein
called "Deferred Interest"); provided that during any Extension Period (i) the
Company shall not declare or pay dividends on, or make a distribution with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to, any of its Capital Stock (other than (a) as a result of an exchange
or conversion of any class or series of the Company's Capital Stock or rights
to acquire such stock for any other class or series of the Company's Capital
Stock or rights to acquire such stock, (b) the purchase of fractional interests
in shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged,
(c) dividends or distributions made on the Company's Capital Stock or rights to
acquire such stock with the Company's Capital Stock or rights to acquire such
stock or (d) purchases of Common Shares related to the issuance of Common
Shares or rights or options under any of the Company's benefit plans for its
directors, officers, employees or other persons within the
<PAGE> 7
7
definition of "employee" under any employee benefit plan of the Company, or
related to the issuance of Common Shares or rights under a dividend
reinvestment plan or stock purchase plan), and (ii) the Company shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities (excluding, for the avoidance of doubt, Senior
Indebtedness, current payables, accrued liabilities, provisions for
reclamation, mine closure and waste rock removal, and income and mining taxes
payable, in respect of which such payments, repayments, repurchase and
redemptions may be made) issued by the Company or any guarantee issued by the
Company that, in either case, rank pari passu with or junior to the Securities.
Prior to the termination of any Extension Period, the Company may further defer
payments of interest by extending the interest payment period on the
Securities; provided, however, that such further Extension Period, including
all such previous and further extensions, may not exceed 10 consecutive semi-
annual payment periods and may not extend beyond the maturity of the
Securities. Upon the termination of any Extension Period and the payment of
all Deferred Interest, the Company may commence a new Extension Period for up
to 10 consecutive semi-annual payment periods, subject to the terms set forth
in the Indenture. During an Extension Period, interest on the Securities will
accrue at the rate of 12% per annum, compounded semi-annually, and holders of
Securities will be required to accrue interest income for United States Federal
income tax purposes prior to receipt of cash related to such interest income.
All interest accrued during an Extension Period shall be paid on the Interest
Payment Date at the end of such Extension Period. No interest payments will be
required to be made during an Extension Period except at the end thereof.
The Company shall give the holders of the Securities written notice of
its initiation of any Extension Period at least ten Business Days prior to the
earlier of (i) the next Interest Payment Date or (ii) the date upon which the
Company is required to give notice to holders of the Securities of the record
date or Interest Payment Date, in each such case with respect to interest
payments the payment of which is being deferred.
<PAGE> 8
8
The Company may elect, from time to time, to satisfy its obligation to
pay any Deferred Interest on any Interest Payment Date by delivering Common
Shares in accordance with the provisions of the Indenture (the "Common Shares
Payment Election"). The Trustee shall in accordance with detailed written
procedures set forth in the Common Shares Election Notice (i) accept delivery
of Common Shares from the Company, (ii) accept bids with respect to, and
consummate sales of, such Common Shares, each as the Company shall direct in
its absolute discretion, (iii) invest the proceeds of such sales in short-term
United States Government Obligations, which mature prior to the applicable
Interest Payment Date, and/or use such proceeds to pay the Deferred Interest,
and (iv) perform any other action necessarily incidental thereto, all as more
fully provided in the Indenture.
Notwithstanding the foregoing, the Company shall not be permitted to
satisfy its obligations to pay Deferred Interest with respect to the Securities
through the delivery of Common Shares if, on the Common Shares Delivery Date,
the Common Shares to be delivered are not then listed on The Toronto Stock
Exchange, the American Stock Exchange or any other significant stock exchange
in Canada or the United States on which the Common Shares are then listed.
Neither the Company's making of a Common Shares Payment Election nor the
consummation of sales of Common Shares on the Common Shares Delivery Date will
(i) result in the holders of the Securities not receiving on the applicable
Interest Payment Date cash in an aggregate amount equal to the Deferred
Interest payable on such Interest Payment Date, or (ii) entitle such holders to
receive any Common Shares in satisfaction of the Company's obligation to pay
such Deferred Interest.
The Securities are redeemable prior to their maturity at the option of
the Company on or after April 1, 2007 in whole at any time or in part from time
to time, at the following prices expressed in percentages of the principal
amount, together with accrued and unpaid interest thereon (including any
Deferred Interest) up to but excluding the Redemption Date,
<PAGE> 9
9
if redeemed during the 12-month period beginning on April 1 of the years
indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- -----------
<S> <C>
2007 105.5%
2008 104.4
2009 103.3
2010 102.2
2011 101.1
and at 100% on or after April 1, 2012.
</TABLE>
At any time on or after April 1, 2002, and prior to April 1, 2007, the
Company may use the Net Cash Proceeds from one or more Cash Equity Sales of the
Company to redeem either (i) up to 40% of the aggregate original principal
amount of the Securities or (ii) 100% of the aggregate principal amount of the
Securities then Outstanding at the following prices expressed in percentages of
the principal amount, together with accrued and unpaid interest thereon
(including any Deferred Interest) up to but excluding the Redemption Date, if
redeemed during the 12-month period beginning on April 1 of the years indicated
below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- -----------
<S> <C>
2002 105.5%
2003 104.5
2004 103.5
2005 102.5
2006 101.5
</TABLE>
Prior to April 1, 2007, the Securities will be redeemable by the
Company, in whole or in part, at any time and from time to time, at an
<PAGE> 10
10
amount equal to the Make-Whole Amount, plus accrued and unpaid interest thereon
(including any Deferred Interest) to the Redemption Date.
The Securities may be redeemed, at the option of the Company, at any
time in whole but not in part, on not less than 30 days and not more than 60
days prior written notice, at 100% of the principal amount of the Securities
plus accrued and unpaid interest thereon (including any Deferred Interest) on
the date of such redemption, on or after the 91st day following the occurrence
and during the continuance of a Redemption Tax Event if within the 90-day
period following such Redemption Tax Event, the Company is unable to avoid the
adverse effects of such Redemption Tax Event by taking some Ministerial Action
or pursuing some other reasonable measure that will have no adverse effect on
the Company or the holder of the Securities.
The Securities are not entitled to the benefits of any sinking fund.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries to, among other things, Incur additional Debt
and pay dividends or make certain other restricted payments, all as more fully
provided in the Indenture. The limitations are subject to a
<PAGE> 11
11
number of important qualifications and exceptions. The Company must report
annually to the Trustee on compliance with such limitations.
The Indenture contains provisions for defeasance at any time of (1) the
entire indebtedness of this Security or (2) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. The occurrence of a Change of Control will constitute an Event of
Default under the Indenture if the Company does not cure such event by making
an offer to repurchase all of the outstanding Securities at a repurchase price
equal to 101% of the aggregate principal amount of such Securities plus accrued
and unpaid interest thereon (including any Deferred Interest) to the repurchase
date.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of this series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of this series. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of this series at the time Outstanding, on behalf of the Holders of
Securities of such series, to waive compliance by the Company with certain past
provisions of the Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
<PAGE> 12
12
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No other reference herein to the Indenture and no other provision of
this Security or of the Indenture shall alter or impair the obligations of the
Company, which are unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin and
currency, as prescribed herein and in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
<PAGE> 13
13
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
