EXHIBIT 7.1
EXECUTION COPY
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XXXXXX METALS INC.
6-3/8% SENIOR NOTES
DUE MARCH 1, 2014
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INDENTURE
Dated as of February 20, 2004
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U.S. Bank National Association
Trustee
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CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture Section
310(a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... N.A.
(a)(4)....................................................................... N.A.
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.10
(c).......................................................................... N.A.
311(a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... N.A.
312(a).......................................................................... 2.05
(b).......................................................................... 12.03
(c).......................................................................... 12.03
313(a).......................................................................... 7.06
(b)(1)....................................................................... N.A.
(b)(2)....................................................................... 7.07
(c).......................................................................... 7.06;12.02
(d).......................................................................... 7.06
314(a).......................................................................... 4.03;12.02
(b).......................................................................... N.A.
(c)(1)....................................................................... 12.04
(c)(2)....................................................................... 12.04
(c)(3)....................................................................... N.A.
(d).......................................................................... N.A.
(e).......................................................................... 12.05
(f).......................................................................... N.A.
315(a).......................................................................... 7.01
(b).......................................................................... 7.05;12.02
(c).......................................................................... 7.01
(d).......................................................................... 7.01
(e).......................................................................... 6.14
316(a)(last sentence)........................................................... 2.09
(a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... N.A.
(b).......................................................................... 6.07
(c).......................................................................... 2.12; 9.04
317(a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.12
(b).......................................................................... 2.04
318(a).......................................................................... 12.01
(b).......................................................................... N.A.
(c).......................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
INDENTURE dated as of February 20, 2004 between Xxxxxx Metals Inc., a
corporation existing under the laws of Canada (the "Company") and U.S. Bank
National Association, as Trustee.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 6-3/8% Senior
Notes due 2014 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Accounts Receivable" of a Person means the Receivables of such Person
arising in the ordinary course of business from the sale of products or the
provision of services by such Person.
"Additional Notes" means Notes other than the Initial Notes issued
under this Indenture in accordance with Section 2.02 and Section 4.06, as part
of the same class as the Initial Notes.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any 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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Allocable Excess Proceeds" shall mean the product of:
(i) the Excess Proceeds and
(ii) a fraction,
(1) the numerator of which is the aggregate
principal amount of the Notes outstanding on the date
of the Offer to Purchase; and
(2) the denominator of which is the sum of the
aggregate principal amount of the Notes outstanding
on the date of the Offer to Purchase and the
aggregate principal amount of other Debt of the
Company outstanding on the date of the Offer to
Purchase that is pari passu in right of payment with
the Notes and subject to terms and conditions in
respect of Asset
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dispositions similar in all material respects to
Section 4.11 and requiring the Company or a
Restricted Subsidiary to make an offer to repurchase
such Debt at substantially the same time as the Offer
to Purchase.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a
disposition by a Restricted Subsidiary of such Person to such Person or a
Wholly-Owned Restricted Subsidiary of such Person or by such Person to a
Wholly-Owned Restricted Subsidiary of such Person) of:
(1) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Restricted
Subsidiary of such Person;
(2) substantially all of the assets of such Person or any
of its Restricted Subsidiaries representing a division or line of
business; or
(3) other assets or rights of such Person or any of its
Restricted Subsidiaries outside of the ordinary course of business;
provided, however, in each of the foregoing instances, that the
aggregate consideration for such transfer, conveyance, sale, lease or
other disposition is equal to US$2.0 million or more.
The term "Asset Disposition" shall not include:
(1) a simultaneous exchange by the Company or a
Restricted Subsidiary of equipment, inventory or other materials
related to the Company's metals business, provided that the materials
received by the Company or a Restricted Subsidiary have at least
substantially equal fair market value to the Company or a Restricted
Subsidiary (as determined by the Board of Directors evidenced by a
Board resolution filed with the Trustee);
(2) an Investment that is excluded from the definition of
Restricted Payment under clause 4.07(c);
(3) a Restricted Payment that is made in compliance with
clause 4.07(f)(viii);
(4) a sale of receivables in connection with a Qualified
Securitization Transaction;
(5) any disposition of Capital Stock or assets of, or any
other Investment in, any Unrestricted Subsidiary;
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(6) any disposition of properties and assets of the
Company or any Restricted Subsidiary that is governed under and
complies with the first paragraph of Section 5.01;
(7) the designation of any Subsidiary as an Unrestricted
Subsidiary or the contribution to the capital of any Unrestricted
Subsidiary, in either case in compliance with the applicable provisions
of this Indenture; or
(8) the assets recorded as assets of discontinued
operations in note 3 to the audited consolidated balance sheet of the
Company as of December 31, 2003.
"Attributable Debt" means, with respect to any Sale-Leaseback
Transaction, to the extent not otherwise included in the definition of Debt, as
at the time of determination thereof, the present value (discounted at the
interest rate borne by the Notes, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lesser of (a) the Notes and (b) (i) the lease included in the Sale-Leaseback
Transaction and (ii) any other existing lease previously included in a
Sale-Leaseback Transaction pursuant to which the Company or a Restricted
Subsidiary is the lessee thereunder and, in the case of either the preceding
clause (i) or (ii), including any period for which any such lease has been
extended.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of penalty, such net amount shall also
include the lesser of the amount of such penalty (in which case no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated) or the rent which would otherwise be
required to be paid if such lease is not so terminated. "Attributable Value"
means, as to a Capital Lease Obligation, the capitalized amount thereof that
would appear on the face of a balance sheet in accordance with generally
accepted accounting principles.
"Bankruptcy Law" means Title 11, U.S. Code, the Bankruptcy and
Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or
any similar United States federal or state law or Canadian federal or provincial
law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors of
such Person and any duly authorized committee thereof.
"Borrowing Base" of any Person means an amount equal to the sum of (a)
85% of (i) the net book value (after allowance for doubtful accounts) of the
Accounts Receivable of such Person less (ii) the value of any Accounts
Receivable of such Person pledged, contributed, sold
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or otherwise transferred or encumbered pursuant to any Receivables Sale and (b)
60% of the net book value (after applicable write-down for obsolescence, quality
problems and the like) of inventories of such Person held in the ordinary course
of business (including inventory subject to a Qualified Securitization
Transaction), in each case (a) and (b) determined in accordance with generally
accepted accounting principles.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Canadian Resale Legend" means the legend set forth in Section
2.06(j)(iii), which is required to be placed on all Notes issued under this
Indenture sold in or to a Person in Canada.
"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 generally accepted
accounting principles. 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. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Change of Control" shall be deemed to have occurred at such time as
either:
(1) any Person or any Persons acting together that would
constitute a "group" (a "Group") for purposes of Section 13(d) of the
Exchange Act, or any successor provision thereto, together with any
Affiliates or Related Persons thereof, shall beneficially own (within
the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision thereto) at least 50% of the aggregate voting power of all
classes of Voting Stock of the Company; or
(2) any Person or Group together with any Affiliates or
Related Persons thereof, shall succeed in having a sufficient number of
its nominees elected to the Board of Directors of the Company such that
such nominees, when added to any existing director remaining on the
Board of Directors of the Company after such election who was a nominee
of or is an Affiliate or Related Person of such Person or Group, will
constitute a majority of the Board of Directors of the Company.
"Clearstream" means Clearstream Banking S.A.
"Commission" means the United States Securities and Exchange
Commission.
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"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding-up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means Xxxxxx Metals Inc., and any and all successors thereto.
"Company Order" means a written request or order signed in the name of
the Company by one or more of its Chairman, Chief Executive Officer, President,
Chief Financial Officer, any Vice President, its Treasurer or its Secretary, and
delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Company and its Restricted Subsidiaries
for such period increased by the sum of (i) Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for such period, plus (ii) Consolidated
Income Tax Expense of the Company and its Restricted Subsidiaries for such
period, plus (iii) the consolidated depreciation and amortization expense
included in the income statement of the Company and its Restricted Subsidiaries
for such period, plus (iv) other non-cash charges of the Company and its
Restricted Subsidiaries reducing Consolidated Net Income for such period, plus
(v), to the extent not otherwise included in clauses (i) to (iv), any costs
deducted in computing Consolidated Net Income for such period associated with
the sale of the Notes and the application of the proceeds thereof, minus (vi)
other non-cash items of the Company and its Restricted Subsidiaries for such
period increasing Consolidated Net Income for such period.
"Consolidated Cash Flow Coverage Ratio" as of any date of determination
means the ratio of (i) Consolidated Cash Flow Available for Fixed Charges of the
Company and its Restricted Subsidiaries for the period of the most recently
completed four consecutive fiscal quarters for which quarterly or annual
financial statements are available to (ii) Consolidated Fixed Charges of the
Company and its Restricted Subsidiaries for such period; provided, however, that
Consolidated Fixed Charges shall be adjusted to give effect on a pro forma basis
to any Debt (other than Debt Incurred under a revolving credit facility for
working capital purposes in the ordinary course of business) that has been
Incurred by the Company or any Restricted Subsidiary since the first day of such
period that remains outstanding and to any Debt that is proposed to be Incurred
by the Company or any Restricted Subsidiary as if in each case such Debt had
been Incurred on the first day of such period and as if the application or
proposed application of the proceeds of such Debt had occurred on the first day
of such period and as if any Debt that has been repaid or retired since the
first day of such period was repaid or retired as of the first day of such
period; provided, however, that in making such computation, the Consolidated
Interest Expense of the Company and its Restricted Subsidiaries attributable to
interest on any proposed Debt bearing a 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; and provided further that, in
the event the Company or any of 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 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.
5
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Interest Expense" means, for any period, the consolidated
interest expense included in a consolidated income statement (without deduction
of interest income from investments or instruments having a term of greater than
30 days) of the Company and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of):
(1) the amortization of Debt discounts;
(2) fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements;
(3) Preferred Stock dividends of the Company and its
Restricted Subsidiaries (other than with respect to Redeemable Stock)
declared and paid or payable;
(4) accrued Redeemable Stock dividends of the Company and
its Restricted Subsidiaries, whether or not declared or paid;
(5) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries;
(6) the portion of any rental obligation allocable to
interest expense determined in accordance with generally accepted
accounting principles;
(7) the face amount of interest payable on any
outstanding convertible securities of the Company or its Restricted
Subsidiaries; and
(8) the amount of all payments charged to shareholders'
equity on any "compound financial instrument" (as described under
generally accepted accounting principles) paid, accrued or scheduled to
be paid or accrued during such period, but excluding any dividends paid
on Preferred Stock repaid, repurchased or retired from the proceeds of
the sale of the Notes.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom:
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(1) the net income (or loss) 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,
(2) the net income (or loss) of any Person that is not a
Restricted Subsidiary of the Company except to the extent of the amount
of dividends or other distributions actually paid to the Company or a
Restricted Subsidiary of the Company by such Person during such period,
(3) gains or losses on Asset Dispositions by the Company
or its Restricted Subsidiaries,
(4) all extraordinary gains and extraordinary losses,
(5) the cumulative effect of changes in accounting
principles,
(6) non-cash gains or losses resulting from fluctuations
in currency exchange rates, and
(7) the tax effect of any of the items described in
clauses (1) through (6) above;
provided, however, that solely for the purposes of calculating the
Consolidated Cash Flow Coverage Ratio (and in each case, except to the extent
already included pursuant to clause (2) above) "Consolidated Net Income" of the
Company shall include the amount of all cash dividends received by the Company
or any Restricted Subsidiary from an Unrestricted Subsidiary.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided, however, that, with
respect to the Company, adjustments following the date of this Indenture to the
accounting books and records of the Company in accordance with generally
accepted accounting principles resulting from the acquisition of control of the
Company by another Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person means the sum of the
Tangible Assets of such Person after eliminating inter-company items, determined
on a consolidated basis in accordance with generally accepted accounting
principles, including appropriate deductions for any minority interest in
Tangible Assets of such Person's Restricted Subsidiaries; provided, however,
that, with respect to the Company, adjustments following the date of this
Indenture to the accounting books and records of the Company in accordance with
generally accepted accounting principles resulting from the acquisition of
control of the Company by another Person shall not be given effect to.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 or such other address as to which the Trustee
may give notice to the Company.
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"Credit Facility" or "Credit Facilities" means, with respect to the
Company or any Restricted Subsidiary, one or more debt or commercial paper
facilities with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables or inventory financing (including through
the sale of receivables or inventory to such lenders or to special purpose,
bankruptcy remote entities formed to borrow from such lenders against such
receivables or inventory) or trade letters of credit, including the Credit
Agreement dated December 19, 1995 between the Company and the lenders named
therein and other credit facilities of Restricted Subsidiaries existing on the
date of this Indenture, in each case as such agreements have or may be amended,
renewed, extended, substituted, restated, refinanced, restructured, supplemented
or otherwise modified from time to time (including, without limitation, any
successive amendments, renewals, extensions, substitutions, restatements,
refinancings, restructurings, supplements or other modifications of the
foregoing), with one or more different borrowers, in one or more different
countries, one or more different lenders and different related notes, collateral
documents, instruments and agreements executed in connection therewith.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"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:
(1) every obligation of such Person for money borrowed,
(2) 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,
(3) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person,
(4) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which
are not overdue or which are being contested in good faith),
(5) every Capital Lease Obligation of such Person,
(6) all Receivables Sales of such Person, together with
any obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in
connection therewith,
(7) all Redeemable Stock issued by such Person,
(8) if such Person is a Restricted Subsidiary, all
Preferred Stock issued by such Person,
(9) every obligation under Interest Rate, Currency or
Commodity Price Agreements of such Person, and
8
(10) every obligation of the type referred to in clauses
(1) through (9) above 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,
Subsidiary Guarantor or otherwise;
provided, however, that Debt shall not include:
(1) obligations of any Person (i) arising from the
honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently drawn against insufficient funds in
the ordinary course of business, provided that any such obligation is
extinguished within five days of its Incurrence, (ii) resulting from
the endorsement of negotiable instruments for collection in the
ordinary course of business and consistent with past business practices
and (iii) under stand-by letters of credit provided in the ordinary
course of business to the extent collateralized by cash or cash
equivalents; and
(2) any liability for federal, provincial, state, local
or other taxes.
The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by:
(1) any contingent Debt, shall be the maximum principal
amount thereof;
(2) 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 generally
accepted accounting principles;
(3) any Receivables Sale, shall be the amount of the
unrecovered capital or principal investment of the purchaser (other
than the Company or a Wholly-Owned Restricted Subsidiary) thereof,
excluding amounts representative of yield or interest earned on such
investment;
(4) any Redeemable Stock, shall be the maximum fixed
redemption or repurchase price in respect thereof; and
(5) any Preferred Stock, shall be the maximum voluntary
or involuntary liquidation preference plus accrued and unpaid dividends
in respect thereof, in each case as of such time of determination.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06, substantially in
the form of Exhibit A hereto, except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 as the
Depositary with respect to the Notes, and
9
any and all successors thereto appointed as Depositary hereunder and having
become such pursuant to the applicable provision of this Indenture.
"Designated Noncash Consideration" means any non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection with
an Asset Disposition that is designated as Designated Noncash Consideration
pursuant to an Officers' Certificate. Such Officers' Certificate shall state the
basis of such valuation. A particular item of Designated Noncash Consideration
shall no longer be considered to be outstanding to the extent it has been sold
or liquidated for cash or readily marketable cash equivalents (but only to the
extent of the cash or readily marketable cash equivalents received).
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means the notes issued in exchange for, and evidencing
the same indebtedness as, the Notes issued on the Issue Date or any Additional
Notes pursuant to the Registration Rights Agreement or any similar registration
rights agreement with respect to any Additional Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"generally accepted accounting principles" or "GAAP" means, as at any
date of determination, generally accepted accounting principles in Canada
(unless otherwise indicated) and which are applicable as of the date of
determination.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto, issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f).
"Global Note Legend" means the legend set forth in Section 2.06(j)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" by any Person means, where the context indicates any
obligation, contingent or otherwise, of such Person guarantying, or having the
economic effect of guarantying, 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, (A) 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, (B) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt, or (C) 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
10
such Debt (and "Guaranteed", "Guarantying" 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.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other
obligation, including by acquisition of Restricted Subsidiaries or the
recording, as required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet of such
Person (and "Incurrence", "Incurred", "Incurable" and "Incurring" shall have
meanings correlative to the foregoing); provided, however, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Interest" or "interest" as used herein shall mean interest payable on
the Notes and shall include Special Interest, if applicable.
"Initial Notes" means the US$175,000,000 aggregate principal amount of
Notes issued under this Indenture on the Issue Date.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who is not also a QIB.
"Interest Payment Date" means March 1 and September 1 of each year to
Stated Maturity.
"Interest Rate, Currency or Commodity Price Agreement" of any Person
means any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars,
puts and similar agreements) relating to, or the value of which is dependent
upon, interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of
business).
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person, including any payment on a Guarantee of any
obligation of such other Person, but shall not include trade accounts receivable
in the ordinary course of business on
11
credit terms made generally available to the customers of such Person. If the
Company or any Restricted Subsidiary sells or otherwise disposes of any Capital
Stock of any direct or indirect Restricted Subsidiary such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted
Subsidiary, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the Investment
in such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the Company
and authenticated by the Trustee under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which commercial
banking institutions in the City of New York, the City of Toronto, or in the
City of the Corporate Trust Office of the Trustee are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of:
(1) all legal, title and recording tax expenses,
commissions and other fees and expenses (including brokerage fees and
commissions) incurred and all federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of
such Asset Disposition;
(2) all payments made by such Person or its Restricted
Subsidiaries on any Debt which is secured by such assets in accordance
with the terms of any Lien upon or with respect to such assets or which
must by the terms of such Lien, or in order to obtain a necessary
consent to such Asset Disposition or by applicable law, be repaid out
of the proceeds from such Asset Disposition;
(3) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition; and
12
(4) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with generally accepted accounting principles against any
liabilities associated with such assets and retained by such Person or
any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case
as determined by the Board of Directors, in its reasonable good faith
judgment evidenced by a resolution of the Board of Directors filed with
the Trustee; provided, however, that any reduction in such reserve
within twelve months following the consummation of such Asset
Disposition will be treated for all purposes of this Indenture and the
Notes as a new Asset Disposition at the time of such reduction with Net
Available Proceeds equal to the amount of such reduction.
"Non-U.S. Person" means a Person who is not a U.S. Person as defined
in Rule 902(k) under the Securities Act.
"Notes" has the meaning assigned to it in the preamble to this
Indenture and more particularly means any Note authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Notes" shall
include any Additional Notes that may be issued under a supplemental indenture
and, for all purposes under this Indenture, both the Initial Notes and the
Additional Notes shall be treated as a single class.
"Offering Memorandum" means the offering memorandum of the Company
dated February 13, 2004 relating to the sale of the Initial Notes.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at the Holder's
address appearing in the Register on the date of the Offer offering to purchase
up to the principal amount of Notes specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Notes within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and the Restricted Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase (which at a minimum will include (i) the
Company's most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information
13
concerning the Offer to Purchase and the events requiring the Company to make
the Offer to Purchase and (iv) any other information required by applicable law
to be included therein). The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Notes offered to be purchased pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been
determined pursuant to the Section requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
US$1,000 aggregate principal amount of Notes accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Notes registered in the name of such Holder and that any portion of a
Note tendered must be tendered in an integral multiple of US$1,000
principal amount;
(6) the place or places where Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will
become due and payable upon each Note being accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall cease
to accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant
to the Offer to Purchase will be required to surrender such Note at the
place or places specified in the Offer prior to the close of business
on the Expiration Date (such Note being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by 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);
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
tendered, the certificate number of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
14
(11) that (a) if Notes in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Notes in denominations of US$1,000 or integral multiples thereof shall
be purchased); and
(12) that in the case of any Holder whose Notes are
purchased only in part, the Company shall execute, and the Trustee
Notes shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Notes so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the Offer to
Purchase provisions of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Offer to Purchase provisions of this
Indenture by virtue of such conflict.
"Officer" means, with respect to any Person, the Chairman of the Board
of Directors, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, any Vice President, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
such Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Corporate
Controller, the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05. The counsel may be an employee of or counsel to the Company, or any
Restricted Subsidiary.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Interest Rate, Currency or Commodity Price Agreement" of any
Person means any Interest Rate, Currency or Commodity Price Agreement entered
into with one or more financial institutions in the ordinary course of business
that is designed to protect such Person against fluctuations in interest rates
or currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect
15
to the Debt being hedged thereby, or in the case of currency or commodity
protection agreements, against currency exchange rate or commodity price
fluctuations in the ordinary course of business relating to then existing
financial obligations or then existing or sold production and not for purposes
of speculation.
"Permitted Joint Venture" means any arrangement with another Person or
Persons structured as an unincorporated joint venture, partnership, association
or limited liability company (i) in which the Company and its Restricted
Subsidiaries own at least 25% of the ownership interest thereof and (ii) which
engages only in a business of the type conducted by the Company and its
Restricted Subsidiaries on the Issue Date or any reasonable extensions or
expansions thereof or any business ancillary thereto or supportive thereof.
"Permitted Liens" means, with respect to any person, any Lien arising
by means of:
(1) any attachment, judgment, decree or order of any
court, so long as such Lien is being contested in good faith and is
either adequately bonded or execution thereon has been stayed pending
appeal or review and any appropriate legal proceedings which may have
been duly initiated for the review of such attachment, judgment, decree
or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(2) taxes, assessments or governmental charges not yet
delinquent or which are being contested in good faith;
(3) security for payment of workers' compensation,
unemployment insurance, old-age pension and similar benefits;
(4) security for the performance of tenders, bids, leases
and contracts (other than contracts for the payment of money);
(5) deposits to secure public or statutory obligations or
in lieu of security or appeal bonds or to secure permitted contracts
for the purchase or sale of any currency entered into in the ordinary
course of business;
(6) operation of law in favor of carriers, warehouses,
landlords, mechanics, materialmen, laborers, employees or suppliers and
similar liens arising by operation of law, incurred in the ordinary
course of business for sums which are not yet delinquent or are being
contested in good faith by negotiations or by appropriate proceedings
which suspend the collection thereof;
(7) any interest or title of a lessor under any lease;
(8) security for security or appeal bonds;
(9) easements, rights-of-way, zoning and similar
covenants and restrictions and other similar encumbrances or title
defects which, in the aggregate, are not substantial in amount and
which do not in any case materially interfere with the ordinary conduct
of the business of the Company or any of its Restricted Subsidiaries;
16
(10) the ownership by a third party of property leased to
the Company or a Restricted Subsidiary;
(11) Liens created solely in favor of the Company or a
Wholly-Owned Restricted Subsidiary;
(12) reservations and exceptions contained in or implied
by statute in the original disposition from the Crown, and grants made
by the Crown of interests so reserved or excepted;
(13) security for payment of trade letters of credit or
letters of guarantee incurred in the ordinary course of business; or
(14) security given by the Company or any Restricted
Subsidiary in the ordinary course of business and consistent with past
business practices to a public utility or any municipality or
governmental or public authority in connection with operations of the
Company or any Restricted Subsidiary other than in connection with
indebtedness for borrowed money.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Preferred 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, dissolution or winding-up of such Person, to shares of Capital
Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.06(j)(i) to be placed on all Notes issued under this Indenture, except where
otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Company pursuant to the Securities Act, or applicable
Canadian securities laws, excluding any Common Stock of the Company to be issued
and sold pursuant to an agreement dated January 26, 2004, between the Company
and GMP Securities Ltd.
"Purchase Money Secured Debt" of any Person means Debt of such Person
secured by a Lien on real or personal property of such Person which Debt (i)
constitutes all or a part of the purchase price or construction cost of such
property or (ii) 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 (A) the Debt so Incurred does not exceed 100% of the
purchase price or construction cost of such property, (B) such Lien does not
extend to or cover any property other than such item of property and any
improvements on such item, (C) the purchase price or construction cost for such
property is or should be included in "addition to property, plant and equipment"
in accordance with generally accepted accounting principles and (D) the purchase
or construction of such property is not part of any acquisition of a Person or
business unit or line of business.
17
"Qualified Securitization Transaction" means any transaction or series
of transactions that may be entered into by the Company or any Restricted
Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell,
convey, grant a security interest in or otherwise transfer to a Securitization
Special Purpose Entity, and such Securitization Special Purpose Entity may sell,
convey, grant a security interest in, or otherwise transfer to any other Person,
any Securitization Program Assets (whether now existing or arising in the
future).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purposes of collection and not as a
financing arrangement; provided, however, that a Qualified Securitization
Transaction shall not be a Receivables Sale.
"Record Date" for the interest or Special Interest, if any, payable on
any Interest Payment Date means February 15 or August 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Notes.
"Registered Exchange Offer" has the meaning described in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof by and among the Company and the other parties
named on the signature pages thereof, as such agreement may be amended, modified
or supplemented from time to time and, with respect to any Additional Notes, one
or more registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend (but without the Private Placement Legend)
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the Outstanding Common Stock of such Person
(or, in the case of a Person that is
18
not a corporation, 5% or more of the equity interest in such Person) or (b) 5%
or more of the combined voting power of the Voting Stock of such Person.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Payment" means to:
(1) declare or pay any dividend or make any distribution
(including any payment in connection with any merger, amalgamation or
consolidation derived from assets of the Company or any Restricted
Subsidiary) in respect of its Capital Stock or to the holders thereof,
excluding (A) any dividends or distributions by the Company payable
solely in shares of its Capital Stock (other than Redeemable Stock) or
in options, warrants or other rights to acquire its Capital Stock
(other than Redeemable Stock), and (B) in the case of a Restricted
Subsidiary, dividends or distributions payable (1) to the Company or a
Restricted Subsidiary and (2) to minority shareholders of such
Restricted Subsidiary, provided that at least a pro rata amount is paid
to the Company and/or a Restricted Subsidiary, as the case may be;
(2) purchase, redeem or otherwise acquire or retire for
value (A) any Capital Stock of the Company or any Related Person of the
Company or (B) any options, warrants or other rights to acquire shares
of Capital Stock of the Company or any Related Person of the Company or
any securities convertible or exchangeable into shares of Capital Stock
of the Company or any Related Person of the Company held by a Person
other than the Company or a Restricted Subsidiary;
(3) make any Investment in any Person other than an
Investment in (1) the Company or a Restricted Subsidiary or (2) a
Person that will become or be merged with or into or amalgamated or
consolidated with a Restricted Subsidiary as a result of such
Investment and which is not subject to any restriction that would
prevent such Restricted Subsidiary from repaying such Investment; or
(4) redeem, repurchase, defease or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or sinking
fund payment Debt of the Company which is subordinate in right of
payment to the Notes or the Subsidiary Guarantees.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
19
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale-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.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Securitization Program Assets" means (i) all receivables and inventory
which are described as being transferred by the Company or any Restricted
Subsidiary of the Company pursuant to documents relating to any Qualified
Securitization Transaction, (ii) all Securitization Related Assets, and (iii)
all collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
"Securitization Related Assets" means (i) any rights arising under the
documentation governing or related to receivables (including rights in respect
of Liens securing such receivables and other credit support in respect of such
receivables) or to inventory, (ii) any proceeds of such receivables or inventory
and any lockboxes or accounts in which such proceeds are deposited, (iii) spread
accounts and other similar accounts (and any amounts on deposit therein)
established in connection with a Qualified Securitization Transaction, (iv) any
warranty, indemnity, dilution and other intercompany claim arising out of the
documents relating to such Qualified Securitization Transaction and (v) other
assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
involving accounts receivable or inventory.
"Securitization Special Purpose Entity" means a Person (including,
without limitation, a Restricted Subsidiary of the Company) created in
connection with the transactions contemplated by a Qualified Securitization
Transaction, which Person engages in no activities other than those incidental
to such Qualified Securitization Transaction.
"Shelf Registration Statement" means a Shelf Registration Statement as
defined in the Registration Rights Agreement.
20
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1 - 02(w) of Regulation S
- X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the date hereof.
"Special Interest" has the meaning set forth in Exhibit A.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Debt, the date on which the payment of interest or
principal was scheduled to be paid in the original documentation governing such
Debt, and shall not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally scheduled
for the payment thereof.
"Subordinated Debt" means Debt of the Company or a Subsidiary Guarantor
as to which the payment of principal of (and premium, if any) and interest and
other payment obligations in respect of such Debt shall be subordinate to the
prior payment in full of the Notes or such Subsidiary Guarantee to at least the
following extent:
(1) no payments of principal of (or premium, if any) or
interest on or otherwise due in respect of such Debt may be permitted
for so long as any default in the payment of principal (or premium, if
any) or Interest on the Notes exists;
(2) in the event that any other default that with the
passing of time or the giving of notice, or both, would constitute an
event of default exists with respect to the Notes, upon notice by 25%
or more in principal amount of the Notes to the Trustee, the Trustee
shall have the right to give notice to the Company, the Subsidiary
Guarantor, if applicable, and the holders of such Debt (or trustees or
agents therefor) of a payment blockage, and thereafter no payments of
principal of (or premium, if any) or interest on or otherwise due in
respect of such Debt may be made for a period of 179 days from the date
of such notice; and
(3) such Debt may not (A) 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 repurchase thereof by the Company (including
any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by
virtue of acceleration of such Debt upon an event of default
thereunder), in each case prior to the final Stated Maturity of the
Notes or (B) permit redemption or other retirement (including pursuant
to an offer to purchase made by the Company) of such other Debt at the
option of the holder thereof prior to the final Stated Maturity of the
Notes, other than a redemption or other retirement at the option of the
holder of such Debt (including pursuant to an offer to purchase made by
the Company) which is conditioned upon a change of control of the
Company pursuant to provisions substantially similar to the provisions
of Section 4.13 (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the Company's
repurchase of the Notes required to be repurchased by the Company
pursuant to the provisions of Section 4.13).
21
"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 policies and
management or the financial and other affairs thereof.
"Subsidiary Guarantee" means a Guarantee by a Subsidiary Guarantor of
all of the Company's obligations with respect to the Notes.
"Subsidiary Guarantor" means any Subsidiary of the Company that
executes a Subsidiary Guarantee.
"Tangible Assets" of any Person means, at any date, the gross book
value as shown by the accounting books and records of such Person of all its
property, both real and personal, less (i) the net book value of all its
licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements or organizational expenses and other like
intangibles, (ii) unamortized debt discount and expense, (iii) all reserves for
depreciation, obsolescence, depletion and amortization of its properties and
(iv) all other proper reserves which in accordance with generally accepted
accounting principles should be provided in connection with the business
conducted by such Person; provided, however, that, with respect to the Company
and its Restricted Subsidiaries, adjustments following the date of this
Indenture to the accounting books and records of the Company and its
Subsidiaries in accordance with generally accepted accounting principles
resulting from the acquisition of control of the Company by another Person shall
not be given effect to.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note, substantially
in the form of Exhibit A attached hereto, that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
22
"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 any other Debt of the Company and its Subsidiaries
(other than an 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.
"U.S." and "United States" means the United States of America, its
territories and possessions, any state of the United states, and the District of
Columbia.
"U.S. Dollar" and "US$" mean United States dollars.
"$" means Canadian dollars.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"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.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
Section 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Additional Amounts" .......................................... 4.16
"Change of Control Payment" ................................... 4.13
"Covenant Defeasance" ......................................... 8.03
"DTC" ......................................................... 2.03
23
Term Defined in Section
---- ------------------
"Event of Default" ............................................ 6.01
"Excess Proceeds" ............................................. 4.11
"Excluded Holder" ............................................. 4.16
"First Currency" .............................................. 12.15
"judgment currency" ........................................... 12.14
"Legal Defeasance" ............................................ 8.02
"Note Register" ............................................... 2.03
"Offer Amount" ................................................ 3.09
"Offer Period" ................................................ 3.09
"Other Currency" .............................................. 12.15
"Paying Agent" ................................................ 2.03
"Payment Default" ............................................. 6.01
"Purchase Date" ............................................... 3.09
"Registrar" ................................................... 2.03
"Repurchase Offer" ............................................ 3.09
"Successor Company" ........................................... 5.01
"Taxes" ....................................................... 4.16
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
24
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees means the Company
and the Subsidiary Guarantors, respectively, and any successor obligor upon the
Notes and the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of, or rules under, the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time;
(g) unless the context otherwise requires, any reference to an
"Article", "Section" or "clause" refers to an Article, Section or clause, as the
case may be of this Indenture; and
(h) the words "herein," "hereof" and "hereunder" and other words
of similar import, refer to this Indenture as a whole and not any particular
Article, Section, clause or other subdivision.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating; Terms.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or
25
endorsements required by law, stock exchange rules or usage. Each Note shall be
dated the date of its authentication. The Notes shall be in denominations of
US$1,000 and integral multiples thereof.
(b) The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. However, to the extent any provision of any Note conflicts
with this Indenture, this Indenture shall govern and be controlling.
(c) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06.
(d) Terms. The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
The Notes shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Section 4.11 and Section 4.13. The Notes shall
not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Initial Notes may be
created and issued from time to time by the Company without notice to or consent
of the Holders and shall be consolidated with and form a single class with the
Initial Notes and shall have the same terms as to status, redemption or
otherwise as the Initial Notes; and provided that the Company's ability to issue
Additional Notes shall be subject to the Company's compliance with Section 4.06.
Any Additional Notes shall be issued with the benefit of an indenture
supplemental to this Indenture.
(e) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of
26
Euroclear" and the "General Terms and Conditions of Clearstream" and "Customer
Handbook" of Clearstream shall be applicable to transfers of beneficial
interests in the Regulation S Global Notes that are held by Participants through
Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
(a) One or more Officers shall execute the Notes on behalf of the
Company by manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until authenticated
substantially in the form of Exhibit A attached hereto by the manual or
facsimile signature of the Trustee. The signature shall be conclusive evidence
that the Note has been duly authenticated and delivered under this Indenture.
(d) The Trustee shall, upon a Company Order authenticate and
deliver Notes for original issue in an aggregate principal amount of
US$175,000,000 for the Initial Notes and in an aggregate principal amount
specified in a Company Order for any Additional Notes issued hereunder.
(e) The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent for the Notes.
(a) The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes ("Note Register") and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without prior notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of the Restricted Subsidiaries may act as Paying Agent or
Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the
Paying Agent and Registrar for the Notes and to act as Custodian with respect to
the Global Notes.
27
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or Special Interest, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a Restricted
Subsidiary) shall have no further liability for the money. If the Company or a
Restricted Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set
forth in this Section 2.06, a Global Note may be transferred in whole and not in
part only to a nominee of the Depositary, or to a successor Depositary or a
nominee of such successor Depositary. A beneficial interest in a Global Note may
not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Note or (y) has ceased to be a clearing agency registered under the
Exchange Act, and in either case, a successor Depositary is not appointed by the
Company within 120 days, (ii) the Company is required by law to exchange Global
Notes for Definitive Notes and the Company delivers a written notice to the
Trustee to such effect, or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Notes. Upon the occurrence of any of the
preceding events in (i) to (iii) above, Definitive Notes shall be issued in such
names and denominations as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced as provided in Section 2.07 and Section
2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be,
a Global Note, except for Definitive Notes issued subsequent to any of the
preceding events in (i) to (iii) above. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f).
28
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend. Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance
with Section 2.06(f), the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and
the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof.
29
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such Holder substantially in the
form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate one or
30
more Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note can be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note without any certification.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon the occurrence of any of the
preceding events in 2.06(a)(i) - (iii) and receipt by the Registrar of
the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder substantially in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraph (B)
above, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item 3(d) thereof and
such certificates and Opinion of Counsel required by item (3)
thereof, if applicable; or
(F) if such beneficial interest is being
transferred to the Company or any of its Restricted
Subsidiaries, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (3)(b)
thereof,
31
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item
(3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only upon the occurrence of any of the preceding events
in Section 2.06(a)(i) - (iii) and if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend,
a certificate from such holder substantially in the
form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
32
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder
substantially in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon the occurrence of any of the preceding events in
Section 2.06(a)(i) - (iii) and satisfaction of the conditions set forth
in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Note
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder
substantially in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
33
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate substantially in the form
of Exhibit B hereto, including the certification in item 3(d)
thereof and such certificates and Opinion of Counsel required
therein by item, if applicable; or
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Restricted
Subsidiaries, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (3)(b)
thereof,
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item
(3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
appropriate 144A Global Note, in the case of clause (C) above, the appropriate
Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
34
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder
substantially in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder
substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) Unrestricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in a Restricted Global
Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global
Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Restricted Global Notes.
35
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes.
(i) Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting
Holder shall present or surrender to the Registrar the Definitive Notes
duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by
its attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(f) Restricted Definitive Notes to Restricted Definitive Notes.
(i) Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to a
QIB in accordance with Rule 144A under the Securities Act,
then the transferor must deliver a certificate substantially
in the form of Exhibit B hereto, including the certifications
in item (1) thereof;
(B) if the transfer shall be made pursuant to
Rule 903 or Rule 904 then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certificates in item (2) thereof; or
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(g) Restricted Definitive Notes to Unrestricted Definitive Notes.
(i) Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
36
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder substantially in the form of Exhibit C
hereto, including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder substantially in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(h) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(i) Registered Exchange Offer. Upon the occurrence of the
Registered Exchange Offer in accordance with a Registration Rights Agreement,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Global Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal that
(x) they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Company, and accepted for exchange in the Registered
Exchange Offer and (ii) Definitive Notes in an aggregate principal amount equal
to the principal amount of the Definitive Notes accepted for exchange in the
Registered Exchange Offer.
37
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Global Notes to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Definitive Notes so
accepted Definitive Notes in the appropriate principal amount. Any Notes that
remain outstanding after the consummation of the Registered Exchange Offer, and
Exchange Notes issued in connection with the Registered Exchange Offer, shall be
treated as a single class of securities under this Indenture.
(j) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO THE COMPANY (2) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (5) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS."
(B) Notwithstanding the foregoing, any
Regulation S Global Note and any other Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
38
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Canadian Resale Legend. Any Regulation S Global Note
sold in or to a Person in Canada or a Definitive Note sold in or to a
Person in Canada (and all Notes issued in exchange therefor or in
substitution thereof) shall, if issued before the date that is four
months and a day after the date of the original issuance of the Note
bear a legend in the following form:
"UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE
HOLDER OF THE NOTES SHALL NOT TRADE THE NOTES IN OR TO A
PERSON IN ANY PROVINCE OR TERRITORY OF CANADA BEFORE, WHICH
DATE IS FOUR MONTHS AND A DAY AFTER THE DATE OF ISSUANCE OF
THE NOTES."
(k) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(l) General Provisions Relating to Transfers and Exchanges.
39
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.11,
4.13 and 9.05).
(iii) Neither the Registrar nor the Company shall be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 and ending at the
close of business on the day of selection, (B) to register the transfer
of or to exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part
or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any
Security at the office or agency of the Company designated pursuant to
Section 4.02, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more replacement Notes of any authorized
denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged
for other Notes of any authorized denomination or denominations of a
like aggregate principal amount upon surrender of the Notes to be
exchanged at such office or agency. Whenever any Global Notes or
Definitive Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
replacement Global Notes and
40
Definitive Notes which the Holder making the exchange is entitled to in
accordance with the provisions of Section 2.02.
(ix) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
(b) Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
(b) If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with
41
the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Notes so owned which have
been pledged in good faith shall not be disregarded if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is
not the Company or any obligor upon the Notes or any Affiliate of the Company or
of such other obligor.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the disposal of all cancelled Notes shall be delivered to
the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
(a) If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note 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 provided in this Section 2.12.
The Trustee shall fix or cause to be fixed each such special record date and
payment date; provided that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. The Trustee
shall promptly notify the Company of such special record date. At least 15 days
before the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed,
42
first-class postage prepaid, to each Holder a notice at his or her address as it
appears in the Note Register that states the special record date, the related
payment date and the amount of such interest to be paid.
(b) Subject to the foregoing provisions of this Section 2.12, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
ARTICLE 3.
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07, it shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to be Redeemed.
(a) If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such other method the Trustee considers fair and appropriate. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of US$1,000 or whole multiples of
US$1,000; no Notes of US$1,000 or less can be redeemed in part, except that if
all of the Notes of a Holder are to be redeemed, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of US$1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
Section 3.03 Notice of Redemption.
(a) Subject to Section 3.09, at least 30 days but not more than 60
days before a redemption date (except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection
with Article 8 or Article 11) the Company shall mail or cause to be mailed, by
first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
43
(b) The notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(vi) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(viii) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(c) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall have delivered to the Trustee, at least 35 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional. On
and after the redemption date, interest ceases to accrue on Notes or portions of
Notes called for redemption.
Section 3.05 Deposit of Redemption Price.
(a) One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued and unpaid interest on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued and unpaid interest on, all Notes to be redeemed.
44
(b) If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Record Date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such Record Date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest accrued to the
redemption date not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) The Notes will be subject to redemption at the option of the
Company, in whole or in part, at any time on or after March 1, 2009 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Register, in amounts of US$1,000 or an integral multiple of US$1,000, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued interest to but excluding the redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date that is on or prior to the redemption date), if redeemed
during the 12-month period beginning on March 1 of the years indicated:
YEAR PERCENTAGE
2009................................................... 103.188%
2010................................................... 102.125%
2011................................................... 101.063%
2012 and thereafter.................................... 100.000%
(b) The Notes will be subject to redemption prior to March 1, 2007
only in the event that the Company receives net proceeds from the sale of its
Common Stock in one or more Public Equity Offerings, in which case the Company
may, at its option, use all or a portion of any such net proceeds to redeem
notes in a principal amount of at least US$5.0 million and up to an aggregate
amount equal to 35% of the original principal amount of the Notes (including
Additional Notes); provided, however, that Notes in an amount equal to at least
65% of the original principal amount of the Notes (including Additional Notes)
remain outstanding after each such redemption. Any such redemption must occur on
a redemption date within 75 days of the completion of such Public Equity
Offering and upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Register, in amounts of US$1,000 or an integral multiple of US$1,000, at a
redemption price of
45
106.375% of the principal amount of the Notes plus accrued interest to but
excluding the redemption date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on an Interest Payment Date that is
on or prior to the redemption date).
(c) Except pursuant to Section 3.07(b) and as described below
under Section 3.07(d), the Notes will not be redeemable at the Company's option
before March 1, 2009.
(d) Redemption for Changes in Canadian Withholding Taxes: The
Notes will be subject to redemption at the option of the Company, as a whole but
not in part, at any time upon not fewer than 30 nor more than 60 days' notice
mailed to each Holder of Notes at the addresses appearing in the Register at a
redemption price equal to 100% of the principal amount of the Notes plus accrued
interest, to but excluding the redemption date if the Company has become or
would become obligated to pay on the next date on which any amount would be
payable under or with respect to the Notes, any Additional Amounts as a result
of any change or amendment to the laws (or regulations promulgated thereunder)
of Canada (or any political subdivision or taxing authority thereof or therein)
(collectively, a "Taxing Authority"), or any change in or amendment to any
official position or administration or assessing practices regarding the
application or interpretation of such laws or regulations, which change or
amendment is announced or becomes effective on or after the Issue Date.
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06.
Section 3.08 Mandatory Redemption.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09 Offer to Purchase.
(a) In the event that, pursuant to Sections 4.11 or 4.13 hereof,
the Company shall be required to commence an Offer to Purchase, it shall follow
the procedures specified below.
(b) The Offer to Purchase shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.11 or Section 4.13, as
applicable, (the "Offer Amount") or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Offer to Purchase. Payment for
any Notes so purchased shall be made in the same manner as interest payments are
made.
(c) If the Purchase Date is on or after a Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Offer to Purchase.
46
(d) Upon the commencement of an Offer to Purchase, the Company
shall send, by first class mail, a notice to each of the Holders, with a copy to
the Trustee. The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Offer to Purchase. The
Offer to Purchase shall be made to all Holders. The notice, which shall govern
the terms of the Offer to Purchase, shall state:
(i) that the Offer to Purchase is being made pursuant to
this Section 3.09 and Sections 4.11 or 4.13 hereof, as applicable, the
length of time the Offer to Purchase shall remain open. If the Offer to
Purchase is made pursuant to Section 4.13 such notice shall describe
the transaction or transactions that constitute the Change of Control
and that all Notes tendered will be accepted for payment;
(ii) the Offer Amount, the Asset Disposition Payment or
Change of Control Payment, as applicable, and the Purchase Date;
(iii) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(iv) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrete or accrue interest after the Purchase
Date; and
(v) that Holders electing to have a Note purchased
pursuant to any Repurchase Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry transfer,
to the Company, a depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice at least three days before
the Purchase Date.
(e) On or before the Purchase Date, the Company shall, to the
extent lawful, (1) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Repurchase Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, (2) deposit with the Paying Agent an amount equal to the Offer
Amount in respect of all Notes, or portions thereof; properly tendered, and (3)
shall deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09.
(f) The Company, the Depositary or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on the Purchase Date.
47
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of,
premium, if any, Special Interest, if any, and interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Restricted Subsidiary thereof, holds as of 12:00 p.m.
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
then applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02 Maintenance of Office or Agency.
(a) The Company shall maintain in the Borough of Manhattan in the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall 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.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan in the City of New York for such purposes. The Company shall 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.
(c) The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
48
Section 4.03 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, and within 90 days after the end of each fiscal
quarter (other than the fourth fiscal quarter) ending after the date hereof, a
certificate from the principal executive officer, principal financial officer or
principal accounting officer stating that a review of the activities of the
Company and its Restricted Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every condition and
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto).
(b) When any Default or Event of Default has occurred and is
continuing under this Indenture, or if the Trustee for the Notes or the holder
of any other evidence of Debt of the Company or any Subsidiary gives any notice
or takes any other action with respect to a claimed Default or Event of Default,
the Company shall as soon as practicable (and, in any event, within 10 days
after the Company's knowledge thereof) deliver to the Trustee by registered or
certified mail or by facsimile transmission an Officers' Certificate specifying
such event and what action the Company proposes to take thereto.
Section 4.04 Taxes.
The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate negotiations or proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.05 Stay, Extension and Usury Laws.
The Company and each of the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of the Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.06 Limitation on Debt.
(a) The Company may not Incur any Debt and may not permit any of
its Restricted Subsidiaries to Incur or suffer to exist any Debt, except that
the Company and its Subsidiary Guarantors may Incur Debt if, after giving pro
forma effect to the Incurrence of such Debt and
49
the receipt and application of the proceeds thereof, the Consolidated Cash Flow
Coverage Ratio of the Company would be greater than 2.0 to 1.0;
(b) Notwithstanding the foregoing limitation, the following Debt
may be Incurred:
(i) Debt Incurred by the Company or any Restricted Subsidiary
under Credit Facilities in an aggregate principal amount at any one time
outstanding pursuant to this clause (i), which, together with any Debt
outstanding under clauses (vi) (including any refinancing thereof under clause
4.06(b)(x)) and clause 4.06(b)(xii), does not exceed the greater of (A) US$250
million or (B) the Borrowing Base of the Company and its Restricted Subsidiaries
on a consolidated basis as of the end of the most recently completed fiscal
quarter for which quarterly or annual financial statements are available;
(ii) Debt consisting of Guarantees by the Company or any Restricted
Subsidiary of Debt Incurred by the Company or a Restricted Subsidiary otherwise
permitted under this Indenture other than, in the case of a Restricted
Subsidiary that is not a Subsidiary Guarantor, Debt Incurred pursuant to Section
4.06(a);
(iii) Debt (other than Debt described in another clause of this
Section 4.06) outstanding on the Issue Date;
(iv) Debt owed by the Company to any Restricted Subsidiary for
which fair value has been received or Debt owed by a Restricted Subsidiary to
the Company or a Restricted Subsidiary; provided, however, that (A) any such
Debt owing by the Company to a Restricted Subsidiary shall be Subordinated Debt
evidenced by an inter-company promissory note and (B) upon either (1) the
transfer or other disposition by such Restricted Subsidiary or the Company of
any Debt so permitted to a Person other than the Company or another Restricted
Subsidiary of the Company or (2) in the case of Debt owed to a Restricted
Subsidiary, such Restricted Subsidiary ceases to be a Restricted Subsidiary, the
provisions of this clause (iv) shall no longer be applicable to such Debt and
such Debt shall be deemed to have been Incurred at the time of such transfer or
other disposition or the date such Subsidiary ceased to be a Restricted
Subsidiary;
(v) Purchase Money Secured Debt and Capital Lease Obligations
Incurred by the Company or any Restricted Subsidiary pursuant to this clause (v)
in an aggregate principal amount at any one time outstanding not to exceed US$25
million; provided, however, that in the case of any Capital Lease Obligation,
the principal amount of such Capital Lease Obligation does not, at the time of
Incurrence, exceed the fair market value of the property acquired in connection
with such Capital Lease Obligation;
(vi) Debt Incurred by a Person prior to the time (A) such Person
became a Restricted Subsidiary of the Company, (B) such Person amalgamated,
merged or consolidated with or into a Restricted Subsidiary of the Company or
(C) another Restricted Subsidiary of the Company amalgamated, merged or
consolidated with or into such Person (in a transaction in which such Person
became a Restricted Subsidiary of the Company) and Debt Incurred by such Person
or a Restricted Subsidiary in connection with, as a result of, or in
anticipation of, such transaction, provided that the amount of Debt at any one
time outstanding under this clause (vi) (including
50
any refinancing thereof pursuant to clause 4.06(b)(x)), which, together with any
Debt at any one time outstanding under clauses 4.06(b)(i) and (xii), does not
exceed the greater of (x) US$250 million and (y) the Borrowing Base of the
Company and its Restricted Subsidiaries on a consolidated basis as of the end of
the most recently completed fiscal quarter for which quarterly or annual
financial statements are available after giving effect, on a pro forma basis, to
the transactions contemplated by this clause 4.06(b)(vi);
(vii) Debt Incurred by the Company or any Restricted Subsidiaries
consisting of Permitted Interest Rate, Currency or Commodity Price Agreements;
(viii) Debt of the Company evidenced by the Notes (not including any
Additional Notes) issued on the Issue Date and the Exchange Notes issued in
exchange for such Notes and any Subsidiary Guarantees thereof;
(ix) Debt (A) in respect of bid, performance, surety or appeal
bonds provided in the ordinary course of business, including letters of credit
or letters of Guarantee securing obligations of the Company or Restricted
Subsidiaries relating to the closure, reclamation or remediation of current or
past operations, (B) in respect of letters of credit provided in the ordinary
course of business, and (C) 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 any of its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the disposition of any
business, assets or Restricted Subsidiary of the Company or any of its
Restricted Subsidiaries and not exceeding the gross proceeds therefrom, other
than Guarantees of Debt Incurred by any Person acquiring all or any portion of
such business or assets of the Company or any of its Restricted Subsidiaries for
the purpose of financing such acquisition;
(x) Debt which is exchanged for or the proceeds of which are used
to refinance or refund, or any extension or renewal of, the Notes or outstanding
Debt Incurred pursuant to the first paragraph of this Section 4.06, or clauses
4.06(b)(iii), (vi) or (viii) (each of the foregoing, 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 by means of a tender offer or privately negotiated repurchase,
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 are used to refinance the Notes or Debt which is
pari passu with or subordinate in right of payment to the Notes or a Subsidiary
Guarantee shall only be permitted if (1) in the case of any refinancing of the
Notes or Debt which is pari passu to the Notes or such Subsidiary Guarantee, the
refinancing Debt is made pari passu to the Notes or subordinated to the Notes or
such Subsidiary Guarantee, and (2) in the case of any refinancing of Debt which
is subordinated to the Notes or such Subsidiary Guarantees, the refinancing Debt
constitutes Subordinated Debt; (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 repurchase thereof (including
any redemption, defeasance, retirement or repurchase which is contingent
51
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, (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
under Section 4.11 and Section 4.13, (3) in the case of any refinancing of Debt
Incurred by the Company, the refinancing Debt may be Incurred only by the
Company, and in the case of any refinancing of Debt Incurred by a Restricted
Subsidiary, the refinancing Debt may be Incurred only by such Restricted
Subsidiary or the Company, and (4) in the case of any refinancing of Preferred
Stock of a Restricted Subsidiary, such Preferred Stock may be refinanced only
with Preferred Stock of a Restricted Subsidiary or the Company;
(xi) Debt represented by daylight borrowings which are repaid on
the same day such Debt is Incurred;
(xii) Debt Incurred by the Company or a Restricted Subsidiary in
connection with any Qualified Securitization Transaction in an aggregate
principal amount at any one time outstanding pursuant to this clause
4.06(b)(xii), which, together with any Debt outstanding under clause 4.06(b)(i)
and (vi) (including any refinancing thereof under clause 4.06(b)(x)), does not
exceed the greater of (A) US$250 million and (B) the Borrowing Base of the
Company and its Restricted Subsidiaries on a consolidated basis as of the end of
the most recently completed fiscal quarter for which quarterly or annual
financial statements are available; and
(xiii) the Incurrence by the Company or any Restricted Subsidiary of
Debt (in addition to Debt permitted by any other clause of this Section 4.06)
pursuant to this clause 4.06(xiii) in an aggregate principal amount (or accreted
value, as applicable) at anytime not to exceed US$75 million.
(c) For purposes of determining compliance with this Section 4.06,
in the event that an item of Debt outstanding or to be Incurred meets the
criteria of more than one of the types of Debt described in this Section 4.06,
the Company, in its sole discretion, may classify such item of Debt and only be
required to include the amount and type of such Debt in accordance with such
classification.
Section 4.07 Limitation on Restricted Payments.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, directly or indirectly, make any Restricted Payment, if:
(i) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would constitute an
Event of Default, shall have occurred and is continuing or would result
from such Restricted Payment; or
(ii) after giving pro forma effect to such Restricted
Payment as if such Restricted Payment had been made at the beginning of
the applicable four-fiscal quarter
52
period, the Company could not Incur at least US$1.00 of additional Debt
pursuant to Section 4.06(a); or
(iii) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments since December 31, 2003 exceeds
the sum of:
(A) 50% of cumulative Consolidated Net Income
(or, in the case Consolidated Net Income shall be negative,
less 100% of such deficit) of the Company since December 31,
2003 through the last day of the last full fiscal quarter
ending immediately preceding the date of such Restricted
Payment for which quarterly or annual financial statements are
available (taken as a single accounting period); plus
(B) 100% of the aggregate net cash proceeds
received by the Company (including (x) the amount of any
dividends reinvested in the Capital Stock of the Company
pursuant to a Company's sponsored dividend reinvestment plan
and (y) from the sale of any marketable securities or other
property received by the Company in exchange for Capital Stock
(other than Redeemable Stock) of the Company or as a capital
contribution) after the Issue Date from contributions of
capital or the issuance and sale (other than to a Restricted
Subsidiary) of Capital Stock (other than Redeemable Stock) of
the Company, options, warrants or other rights to acquire
Capital Stock (other than Redeemable Stock) of the Company and
Debt of the Company that has been converted into or exchanged
for Capital Stock (other than Redeemable Stock and other than
by or from a Restricted Subsidiary) of the Company after the
Issue Date, provided that any such net proceeds received by
the Company from an employee stock ownership plan financed by
loans from the Company or a Restricted Subsidiary shall be
included only to the extent such loans have been repaid with
cash on or prior to the date of determination; plus
(C) an amount equal to the net reduction in
Investments by the Company and its Restricted Subsidiaries
subsequent to the date of this Indenture in any Person subject
to clause (c) above upon the disposition, liquidation or
repayment (including any dividends) thereof or from
redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries, but only to the extent such amount is not
included in Consolidated Net Income and not to exceed in the
case of any one Person the amount of Investments previously
made by the Company and its Restricted Subsidiaries in such
Person.
(b) Notwithstanding the foregoing, so long as no Event of Default,
or event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be continuing or would
result therefrom,
(i) the Company and any Restricted Subsidiary may pay any
dividend on Capital Stock of any class within 60 days after the
declaration thereof if, on the date when the dividend was declared, the
Company or such Restricted Subsidiary could have paid such dividend in
accordance with the foregoing provisions;
53
(ii) the Company or a Subsidiary Guarantor may refinance
any Debt otherwise permitted by clause 4.06(b)(x) or solely in exchange
for or out of the net proceeds of the substantially concurrent sale
(other than from or to a Restricted Subsidiary) of shares of Capital
Stock of the Company (other than Redeemable Stock);
(iii) the Company may purchase, redeem, acquire or retire
any shares of its Capital Stock solely in exchange for or out of the
net proceeds of the substantially concurrent sale (other than from or
to a Restricted Subsidiary) of shares of Capital Stock (other than
Redeemable Stock) of the Company;
(iv) the Company may purchase or redeem any Debt from Net
Available Proceeds to the extent permitted under Section 4.11;
(v) the Company may redeem its 8% Subordinated Debentures
due June 15, 2006 from the proceeds of the sale of the Initial Notes;
(vi) the Company may redeem its Class II preferred shares,
Series C outstanding on the Issue Date from the proceeds of the sale of
the Initial Notes;
(vii) the Company may declare and pay dividends in the
amount of up to $0.08 per share on its Common Stock per fiscal quarter;
provided, that, in the event that the outstanding shares of the
Company's Common Stock shall be subdivided, combined or consolidated,
by reclassification, stock split or otherwise, into a greater or lesser
number of shares of Common Stock, the amount of the dividend that the
Company may pay shall, concurrently with the effectiveness of such
subdivision, combination or consolidation, be proportionately decreased
or increased, as appropriate;
(viii) the Company or any Restricted Subsidiary may make
Investments in Permitted Joint Ventures and Unrestricted Subsidiaries
in an aggregate amount not to exceed the greater of (A) US$50 million
and (B) 7% of Consolidated Tangible Assets;
(ix) the Company or any Restricted Subsidiary may make
loans or advances to executive officers or directors of the Company or
any Restricted Subsidiary in the ordinary course of business and
consistent with the past practice of the Company or any Restricted
Subsidiary, as the case may be, not to exceed US$1 million in the
aggregate principal amount outstanding at any one time (plus amounts
funded with life insurance proceeds from policies covering such
officers and directors);
(x) the Company may make certain purchases, redemptions,
acquisitions, cancellations or other retirements for a nominal value
per right of any rights granted pursuant to any shareholders' rights
plan;
(xi) the Company may make payments of dividends pursuant
to the terms of the Company's Redeemable Stock to the extent such
dividends are included in Consolidated Interest Expense;
(xii) the Company may make any repurchase of Capital Stock
or options to acquire Capital Stock deemed to occur upon the exercise
of stock options if such Capital
54
Stock or options to acquire Capital Stock represents all or a portion
of the exercise price thereof;
(xiii) the Company may make Restricted Payments not to
exceed US$12.0 million in any four-quarter period, provided that as of
the date of such Restricted Payment, after giving pro forma effect to
such Restricted Payment, the Consolidated Cash Flow Coverage Ratio of
the Company would be greater than 3.0 to 1.0 and no Debt would be
outstanding under any Credit Facility, excluding letters of credit
provided in the ordinary course of business; or
(xiv) the Company or any Restricted Subsidiary may make
Restricted Payments not to exceed US$20 million in the aggregate after
the date of this Indenture.
(c) Any payment made pursuant to clause 4.07(b)(i) shall be a
Restricted Payment for purposes of calculating aggregate Restricted Payments
pursuant to Section 4.07(a) above and the amount of the net proceeds from any
exchange, conversion or sale of Capital Stock of the Company pursuant to clauses
4.07(b)(ii) or (iii), to the extent that it is used for the purposes set forth
in clause 4.07(b)(ii) or (iii), shall be excluded from the calculation of the
amount available for Restricted Payments pursuant to clause 4.07(a)(iii)(B).
(d) The amount of all Restricted Payments (other than cash) will
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this Section 4.07 will be determined by the Board of Directors of the Company
whose resolution with respect thereto will be delivered to the Trustee. Not
later than the making of any Restricted Payment, other than a Restricted Payment
under clauses 4.07(b)(ii), (iii), (v), (vi), (vii) and (x), which, together with
any Restricted Payments not previously reported pursuant to this sentence,
exceeds $2.0 million, the Company will deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed, together with any fairness opinion or appraisal required by this
Indenture, and stating that no Event of Default or event that with the passing
of time or the giving of notice, or both, would constitute an Event of Default
has occurred and is continuing or would result from such Restricted Payment(s).
Section 4.08 Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the Company or
any other Restricted Subsidiary of the Company or pay any Debt or other
obligation owed to the Company or any other Restricted Subsidiary;
(ii) make loans or advances to the Company or any other Restricted
Subsidiary; or
55
(iii) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
(b) Notwithstanding the foregoing, the Company may, and may permit
any Restricted Subsidiary to, suffer to exist any such encumbrance or
restriction:
(i) pursuant to any agreement in effect on the Issue
Date;
(ii) pursuant to an agreement relating to any Debt
Incurred by a Person (other than a Restricted Subsidiary of the Company
existing on the Issue Date or any Restricted Subsidiary carrying on any
of the businesses of any such Restricted Subsidiary) prior to the date
on which such Person became a Restricted Subsidiary of the Company and
outstanding on such date and not Incurred in anticipation of becoming a
Restricted Subsidiary, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person,
other than the Person so acquired;
(iii) pursuant to an agreement effecting a renewal,
extension, refunding or refinancing of Debt Incurred pursuant to an
agreement referred to in clause 4.08(b)(i) or (ii); provided, however,
that the provisions contained in such renewal, extension, refunding or
refinancing agreement relating to such encumbrance or restriction are
not materially less favorable in the aggregate than the provisions
contained in the agreement the subject thereof, as determined in good
faith by the Board of Directors and evidenced by a resolution of the
Board of Directors filed with the Trustee;
(iv) pursuant to this Indenture, the Notes and any
Subsidiary Guarantees or any other instrument governing debt securities
of the Company Incurred in compliance with Section 4.06 that are no
more restrictive, taken as a whole, than those contained in this
Indenture, the Notes and the Subsidiary Guarantees;
(v) in the case of clause 4.08(b)(iii), pursuant to
restrictions contained in any security agreement (including a capital
lease) securing Debt of a Restricted Subsidiary otherwise permitted
under this Indenture, but only to the extent such restrictions restrict
the transfer of the property subject to such security agreement;
(vi) in the case of clause 4.08(b)(iii), pursuant to
customary nonassignment provisions entered into in the ordinary course
of business in leases and other contracts to the extent such provisions
restrict the transfer or subletting of any such lease or the assignment
of rights under any such contract;
(vii) with respect to a Restricted Subsidiary, imposed
pursuant to any agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary, provided that consummation of such
transaction would not result in an Event of Default or an event that,
with the passing of time or the giving of notice or both, would
constitute an Event of Default, that such restriction terminates if
such transaction is closed or abandoned and that the closing or
abandonment of such transaction occurs within one year of the date such
agreement was entered into; or
56
(viii) which is the result of applicable corporate law or
regulation relating to the payment of dividends or distributions.
Section 4.09 Limitation on Liens.
The Company may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, Incur or suffer to exist any Lien upon any of its
property or assets, now owned or hereafter acquired, to secure Debt or
otherwise, without making, or causing such Restricted Subsidiary to make,
effective provision for all of the Notes and all other amounts due under this
Indenture to be directly secured equally and ratably with (or prior to) the
obligation or liability secured by such Lien for so long as such Lien affects
such property or assets. The foregoing restrictions will not apply to Liens in
respect of:
(a) Liens existing on the date of this Indenture;
(b) Permitted Liens;
(c) Liens on the accounts receivable and inventory of the Company
and its Restricted Subsidiaries (and the proceeds thereof) securing the
obligations of the Company and its Restricted Subsidiaries;
(d) Liens on assets or property of a Person (i) existing at the
time such Person becomes a Restricted Subsidiary and not Incurred in
anticipation of becoming a Restricted Subsidiary or (ii) existing immediately
prior to the time such Person is merged with or into or amalgamated or
consolidated with the Company or any Restricted Subsidiary of the Company and
not incurred in anticipation of such merger, amalgamation or consolidation;
(e) Liens on assets or property existing immediately prior to the
time of acquisition thereof and not Incurred in anticipation of the financing of
such acquisition provided that such Liens do not extend to or cover any property
or assets of the Company or any Restricted Subsidiary (other than the assets or
property acquired);
(f) any interest or title of a lessor to any property subject to a
Capital Lease Obligation which is permitted to be Incurred under this Indenture;
(g) Liens to secure Debt Incurred to renew, extend, refinance or
refund (or successive extensions, renewals, refinancings or refundings), in
whole or in part, Debt secured by any Lien permitted under this Indenture so
long as such Lien does not extend to or cover any assets or property of the
Company or any of its Restricted Subsidiaries not securing the Debt so
refinanced, replaced or refunded;
(h) Liens to secure Debt Incurred in connection with Debt
permitted under clause 4.06(b)(i);
(i) Liens to secure Purchase Money Secured Debt that is permitted
to be Incurred under this Indenture;
57
(j) Liens to secure Permitted Interest Rate, Currency or Commodity
Price Agreements permitted to be Incurred under this Indenture; or
(k) Liens on any assets of the Company or any Restricted
Subsidiary to secure Debt in an aggregate amount not to exceed US$10 million.
Section 4.10 Limitation on Sale-leaseback Transactions.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any Sale-Leaseback Transaction, except
with a Wholly-Owned Restricted Subsidiary.
(b) Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may enter into Sale-Leaseback Transactions if (i) the Company or
such Restricted Subsidiary would be entitled to create a Lien on the property
securing the Attributable Debt with respect to such Sale-Leaseback Transaction
without also securing the Notes pursuant to Section 4.09, (ii) the value of the
consideration to be received by the Company and its Restricted Subsidiaries in
connection with such Sale-Leaseback Transaction is at least equal to the fair
market value of such properly as determined by the Company's Board of Directors,
and (iii) such Sale-Leaseback Transaction otherwise complies with this
Indenture, including, if such Sale-Leaseback Transaction constitutes an Asset
Disposition, the Company or such Restricted Subsidiary applies the Net Available
Proceeds of such Asset Disposition as provided under Section 4.11.
Section 4.11 Limitation on Asset Dispositions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related transactions
unless:
(i) the Company or the Restricted Subsidiary, as the case
may be, receives consideration for such disposition at least equal to
the fair market value for the assets sold or disposed of as determined
by the Board of Directors in good faith and evidenced by a resolution
of the Board of Directors filed with the Trustee; and
(ii) at least 70% of the consideration for such
disposition consists of (w) cash or readily marketable cash
equivalents, (x) the assumption of Debt, trade payables or accrued
liabilities of the Company (other than Debt that is subordinated to the
Notes) or of such Restricted Subsidiary (other than Debt that is
subordinated to a Subsidiary Guarantee, if applicable), as the case may
be, relating to such assets and release from all liability on the Debt,
trade payables or accrued liabilities assumed, (y) any securities,
notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are contemporaneously,
subject to ordinary settlement periods, converted by the Company or
such Restricted Subsidiary into cash or readily marketable cash
equivalents, to the extent of the cash or readily marketable cash
equivalents received in that conversion or (z) any Designated Noncash
Consideration received by the Company or any of its Restricted
Subsidiaries in such Asset Disposition having an aggregate fair market
value, taken together with all other Designated Noncash Consideration
received pursuant to this clause (z) then outstanding, not to exceed
US$10.0 million at the time of receipt of such Designated Noncash
Consideration, with
58
the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to
subsequent changes in value.
(b) The Net Available Proceeds (or any portion thereof) from Asset
Dispositions may be applied by the Company or a Restricted Subsidiary to the
extent the Company or a Restricted Subsidiary elects (or is required to by the
terms of any Debt) to:
(i) repay any Debt of the Company or a Restricted
Subsidiary under Credit Facilities or which is secured or Debt of a
Restricted Subsidiary other than a Subsidiary Guarantor; or
(ii) invest in non-current assets related to the business
of the Company and its Restricted Subsidiaries.
(c) Any Net Available Proceeds from an Asset Disposition not
applied in accordance with Section 4.11(b) within 12 months from the date of the
receipt of such Net Available Proceeds or that is not committed for investment
in non-current assets related to the business of the Company and its Restricted
Subsidiaries for which binding contractual commitments have been entered into
prior to the end of such 12-month period and that shall not have been completed
or abandoned shall constitute "Excess Proceeds;" provided, however, that the
amount of any Net Available Proceeds that ceases to be committed as contemplated
above shall also constitute "Excess Proceeds" at the time any such Net Available
Proceeds ceases to be so committed; provided, further, however, that the amount
of any Net Available Proceeds that continues to be committed for investment as
described above that is not reinvested with 24 months from the date of the
receipt of such Net Available Proceeds shall also constitute Excess Proceeds.
(d) When the aggregate amount of Excess Proceeds (including income
earned on such Excess Proceeds) exceeds US$25.0 million, the Company will be
required to make an Offer to Purchase Notes, which offer shall be in the amount
of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata
basis according to principal amount, at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the purchase date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date), in accordance with
the procedures (including prorating in the event of oversubscription) set forth
in this Indenture. Following the completion of an Offer to Purchase, the Company
may apply any remaining Net Available Proceeds to any other use as determined by
the Company which is not otherwise prohibited by this Indenture and the amount
of Excess Proceeds will be reset to zero.
(e) The Company shall deliver an Offer to Purchase pursuant to
this Section 4.11 within ten business days after the Company is first obligated
to make such Offer to Purchase.
(f) The provisions described under this Section 4.11 shall not
apply to a transaction which is permitted under Section 5.01.
59
Section 4.12 Transactions with Affiliates and Related Persons.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, enter into any transaction (or series of related transactions)
with an Affiliate or Related Person of the Company (other than the Company or a
Restricted Subsidiary), including any Investment, either directly or indirectly,
unless such transaction is on terms no less favorable to the Company or such
Restricted Subsidiary, than those that could be obtained in a comparable arm's
length transaction with an entity that is not an Affiliate or Related Person and
is in the best interests of the Company or such Restricted Subsidiary.
(b) For any transaction that involves in excess of US$250,000 but
less than or equal to US$2 million, the Chief Executive Officer or Chief
Operating Officer of the Company shall determine that the transaction satisfies
the criteria set out under Section 4.12(a) and shall evidence such a
determination by a certificate filed with the Trustee.
(c) For any transaction that involves in excess of US$2 million, a
majority of the disinterested members of the Board of Directors shall determine
that the transaction satisfies the criteria set out under Section 4.12(a) and
shall evidence such a determination by a Board Resolution filed with the
Trustee.
(d) For any transaction that involves in excess of US$10 million,
the Company shall also obtain an opinion from a nationally recognized expert in
the United States or Canada with experience in appraising the terms and
conditions of the type of transaction (or series of related transactions) for
which the opinion is required stating that such transaction (or series of
related transactions) is on terms no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or Related
Person of the Company, which opinion shall be filed with the Trustee.
(e) The requirements of Section 4.12(a)-(d) shall not apply to:
(i) any compensation or employment or indemnification
arrangement (including stock options) entered into by the Company or
any Restricted Subsidiary in the ordinary course of business and
consistent with the past practice of the Company or such Restricted
Subsidiary;
(ii) any customary directors fees;
(iii) any metals transactions or financing thereof in the
ordinary course of business;
(iv) the sale of Capital Stock of the Company (other than
Redeemable Stock) to Affiliates;
(v) transactions permitted by Section 4.07; and
(vi) transactions with a Person that is an Affiliate of
the Company (other than an Unrestricted Subsidiary) that is an
Affiliate solely because the Company has, directly or through a
Restricted Subsidiary, an equity interest in, or controls, such Person.
60
Section 4.13 Change of Control.
Within 30 days following any Change of Control, the Company shall make
an Offer to Purchase all outstanding Notes on the terms set forth in this
Indenture. In the Offer to Purchase, the Company shall offer a payment in cash
equal to 101% of the aggregate principal amount of Notes purchased, plus accrued
and unpaid interest on the Notes purchased, to the date of purchase (the "Change
of Control Payment").
Section 4.14 Provision of Financial Information.
(a) Whether or not the Company is required to be subject to
Section 13(a) or 15(d) of the Exchange Act, or any successor provision thereto,
the Company shall file with the Commission the annual reports, quarterly reports
and other documents which it would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if it were so required, such documents to be filed with the Commission
on or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if it were so
required.
(b) The Company shall also in any event
(i) within 15 days of each Required Filing Date
(A) transmit to all Holders, as their names and
addresses appear in the Security Register, without cost to
such Holders, and
(B) furnish to the Trustee, copies of the annual
reports, quarterly reports and other documents which the
Company files with the Commission pursuant to such Section
13(a) or 15(d) or any successor provision thereto or would
have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) or any successor provisions
thereto if the Company were required to be subject to such
Sections; and
(ii) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon
written request supply copies of such documents to any prospective
Holder.
Section 4.15 Unrestricted Subsidiaries.
(a) The Company may designate any Subsidiary of the Company to be
an "Unrestricted Subsidiary" as provided in Section 4.15(b), 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.
(b) 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, however, that either (x) the
61
Subsidiary to be so designated has total assets of US$1,000 or less or (y)
immediately after giving effect to such designation, the Company could Incur at
least US$1.00 of additional Debt pursuant to Section 4.06(a) and provided,
further, that the Company could make a Restricted Payment pursuant to Section
4.07 in an amount equal to the greater of the fair market value or book value of
such Subsidiary, and such amount is thereafter treated as a Restricted Payment
for the purpose of calculating the aggregate amount available for Restricted
Payments thereunder. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that, immediately
after giving effect to such designation, (i) no Event of Default or event that
with the passing of time or the giving of notice, or both, would constitute an
Event of Default shall have occurred and be continuing, (ii) the Company could
Incur at least US$1.00 of additional Debt pursuant to Section 4.06(a) and (iii)
all Liens of such Subsidiary outstanding immediately following such designation
would, if incurred as a result of such designation, have been permitted to be
Incurred for all purposes of this Indenture.
(c) Any such designation by the Board of Directors 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 4.16 Additional Amounts.
(a) All payments made by the Company or any Subsidiary Guarantor
under or with respect to the Notes or any Subsidiary Guarantee will be made free
and clear of and without withholding or deduction for or on account of, any
present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of any Canadian Taxing Authority
(hereinafter "Taxes"), unless the Company or any Subsidiary Guarantor is
required to withhold or deduct Taxes by law or by the interpretation or
administration thereof. If the Company or any Subsidiary Guarantor is so
required to withhold or deduct any amount of interest for or on account of Taxes
from any payment made under or with respect to the Notes or any Subsidiary
Guarantee, the Company or such Subsidiary Guarantor, as the case may be, will
pay such additional amounts of interest ("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 that no Additional Amounts will be payable with respect to a payment
made to a Holder (an "Excluded Holder") (i) with which the Company or such
Subsidiary Guarantor does not deal at arm's length (within the meaning of the
Income Tax Act (Canada)) at the time of making such payment, (ii) which is
subject to such Taxes by reason of any connection between such Holder and Canada
or any province or territory thereof other than the mere holding of Notes or the
receipt of payments thereunder, (iii) which failed to duly and timely comply
with a timely request of the Company to provide information, documents,
certification or other evidence concerning such Holder's nationality, residence,
entitlement to treaty benefits, identity or connection with Canada or any
political subdivision or authority thereof, if and to the extent that due and
timely compliance with such request would have resulted in the reduction or
elimination of any taxes as to which Additional Amounts would have otherwise
been payable to such Holder of Notes but for this clause (iii), (iv) which is a
fiduciary, a partnership or not the beneficial owner of any payment on a Note,
if and to the extent that, as a result of an applicable tax treaty, no
Additional Amounts would have been payable had the
62
beneficiary, partner or beneficial owner owned the Note directly (but only if
there is no material cost or expense associated with transferring such Note to
such beneficiary, partner or beneficial owner and no restriction on such
transfer that is outside the control of such beneficiary, partner or beneficial
owner), or (v) any combination of the foregoing numbered clauses of this
proviso. The Company or such Subsidiary Guarantor, as the case may be, shall
also (i) make such withholding or deduction and (ii) remit the full amount
deducted or withheld to the relevant authority in accordance with applicable
law. The Company or such Subsidiary Guarantor, as the case may be, shall furnish
to the Holders of the Notes, 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 or such Subsidiary Guarantor, as the case
may be. The Company or such Subsidiary Guarantor, as the case may be, will
indemnify and hold harmless each Holder (other than all Excluded Holders) for
the amount of (i) any Taxes not withheld or deducted by the Company or such
Subsidiary Guarantor and levied or imposed and paid by such Holder as a result
of payments made under or with respect to the Notes or the Subsidiary
Guarantees, (ii) any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, and (iii) any Taxes imposed with
respect to any reimbursement under clauses (i) or (ii) above.
(b) At least 30 days prior to each date on which any payment under
or with respect to the Notes is due and payable, if the Company or any
Subsidiary Guarantor is aware that it will be obligated to pay Additional
Amounts with respect to such payment, the Company will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information
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), interest or any other amount payable
under or with respect to any Note, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Section 4.16
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
Section 4.17 Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all Holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
Section 4.18 Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided, that
the Company shall
63
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries,
if the Company in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 4.19 Money for Security Payments to Be Held in Trust.
(a) If the Company or any of the Restricted Subsidiaries shall at
any time act as Paying Agent hereunder, it shall, on or before each due date of
the principal of (and premium, if any) or interest and Special Interest, if any,
on any of the Notes, segregate and hold in trust for the benefit of the Person
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the Trustee
of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for
the Notes, it shall, on or before each due date of the principal of (and
premium, if any) or interest and Special Interest, if any, on any Notes, deposit
with a Paying Agent a sum in same day funds (or New York Clearing House funds of
such deposit is made prior to the date on which such deposit is required to be
made) sufficient to pay the principal (and premium, if any) or interest and
Special Interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest and the
Company shall promptly notify the Trustee of such action or any failure so to
act.
(c) The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
4.19, that such Paying Agent shall:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest and Special Interest, if
any, on Notes 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;
(ii) give the Trustee notice of any default by the Company
(or any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest and Special Interest, if
any; and
(iii) 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.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and upon such payment by any Paying Agent to the
64
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) 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 (and
premium, if any) or interest and Special Interest, if any, on any Note and
remaining unclaimed for two years after such principal (and premium, if any) or
interest and Special Interest, if any has become due and payable shall be paid
to the Company on Company request, unless an abandoned property law designates
another person, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note 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 that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written direction and at the expense of the Company, cause to be
published once, in the New York Times, The Wall Street Journal (national
edition), the Globe and Mail and the National Post, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 4.20 Maintenance of Properties.
The Company shall cause all properties owned by the Company or any
Restricted Subsidiary and used or useful in the conduct of its business or the
business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 4.20 shall prevent the Company
or any Restricted Subsidiary from discontinuing the maintenance of any of such
properties if such discontinuance is, as determined by the Company or such
Restricted Subsidiary in good faith, desirable in the conduct of its business or
the business of any Restricted Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 4.21 Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
(which may include self-insurance) against loss or damage with insurers believed
by the Company to be responsible to the extent that property of similar
character is usually so insured or self-insured by corporations similarly
situated and owning like properties in accordance with customary business
practices.
65
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidations and Certain Sales and Purchases of Assets.
The Company may not, in a single transaction or a series of related
transactions, amalgamate, consolidate or merge with or into any other Person or
permit any other Person to amalgamate, consolidate or merge with or into the
Company or directly or indirectly, transfer, sell, lease or otherwise dispose of
all or substantially all of its assets, unless:
(a) in a transaction in which the Company does not survive or in
which the Company sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity to the Company is organized under the
laws of the United States of America, any State thereof, the District of
Columbia, Canada or any territory or province thereof and shall expressly
assume, by a supplemental indenture executed and delivered to the Trustee in
form satisfactory to the Trustee, all of the Company's obligations under this
Indenture;
(b) immediately before and after giving effect to such transaction
and treating any Debt which becomes an obligation of the Company or a Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary at the time of the transaction, no Event
of Default or event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default shall have occurred and be
continuing;
(c) immediately after giving effect to such transaction and
treating any Debt which becomes an obligation of the Company or a Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Company or such Subsidiary at the time of the transaction, the Company
(including any successor entity to the Company) could Incur at least US$1.00 of
additional Debt pursuant to the provisions of this Indenture described under
Section 4.06(a);
(d) if, as a result of any such transaction, property or assets of
the Company would become subject to a Lien prohibited by the provisions of this
Indenture described under Section 4.09, the Company or the successor entity to
the Company shall have secured the Notes as required by Section 4.09; and
(e) the Company shall deliver, or cause to be delivered, to the
Trustee, in form reasonably satisfactory to the Trustee, an Officers'
Certificate stating that such transaction or series of transactions and the
supplemental indenture, if any, in respect thereto comply with this covenant and
that all conditions precedent herein provided for relating to such transaction
or series of transactions have been satisfied.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this
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Indenture referring to the Company shall refer instead to the successor
corporation and not to the Company), and may exercise every right and power of
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; provided that the predecessor
Company shall not be relieved from the obligation to pay the principal of and
interest and Special Interest, if any, on the Notes except in the case of a
sale, assignment, transfer, conveyance or other disposition of all of the
Company's assets that meets the requirements of Section 5.01.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" wherever used herein, 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 to pay principal of (or premium, if any,) on any Note
when due (or any Additional Amounts related thereto);
(b) failure to pay any interest (or any Additional Amounts related
thereto) on any Note when due, and any such failure continued for 30 days;
(c) failure to make an Offer to Purchase as required by Section
4.11, or Default in the payment of principal and interest on Notes required to
be purchased pursuant to an Offer to Purchase made under such covenant when due
and payable;
(d) failure to perform or comply with the provisions described
under Section 4.13 and Section 5.01;
(e) failure to perform any other covenant or agreement of the
Company under this Indenture or the Notes continued for 30 days after written
notice to the Company by the Trustee or Holders of at least 25% in aggregate
principal amount of Outstanding Notes;
(f) the occurrence of a Default under the terms of any instrument
evidencing or securing Debt for money borrowed by the Company or any Restricted
Subsidiary having an outstanding principal amount of US$20 million individually
or in the aggregate, which default results in the acceleration of the payment of
all or any portion of such indebtedness or constitutes the failure to pay all or
any portion of such indebtedness when due;
(g) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any Restricted Subsidiary in an amount in excess
of US$20 million not adequately covered by insurance which remains undischarged
or unstayed for a period of 60 days after the date on which the right to appeal
has expired;
(h) a Subsidiary Guarantee ceases to be in full force and effect
or is declared null and void or a Subsidiary Guarantor denies that it has any
further liability under its Subsidiary
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Guarantee, or gives notice to such effect (other than by reason of the
termination of this Indenture or the release of the Subsidiary Guarantee in
accordance with this Indenture);
(i) if the Company or any of its Restricted Subsidiaries pursuant
to or within the meaning of Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or
insolvent;
(ii) consents to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under applicable
Bankruptcy law;
(iii) consents to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) generally is not paying its debts as they become due;
and
(j) if a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Restricted Subsidiaries in a proceeding in which the Company or any
such Restricted Subsidiary is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any of its
Restricted Subsidiaries or for all or substantially all of the property
of the Company or any of its Restricted Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Restricted Subsidiaries;
(iv) and the order or decree remains unstayed and in
effect for 60 consecutive days.
Section 6.02 Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in clause (i) or (j) of Section 6.01) shall occur and be continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the then outstanding Notes may declare the principal of all Notes due and
payable immediately; provided, however, that after such acceleration, but before
a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the then outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal, have been cured or waived
as provided in this Indenture.
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(b) If an Event of Default specified in clause (i) or (j) of
Section 6.01 occurs and is continuing, then the principal of all the Notes shall
become due and payable without any declaration or other act on the part of
either Trustee or any Holder. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
(c) At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as provided in this Article, the Holders of a majority in
aggregate principal amount of the Notes outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Company or the Subsidiary Guarantors have paid or
deposited with the Trustee a sum sufficient to pay;
(A) all overdue interest on all outstanding Notes;
(B) all unpaid principal of (and premium, if any, on) any
outstanding Notes which has become due otherwise than
by such declaration of acceleration, and interest on
such unpaid principal at the rate borne by the Notes;
(C) to the extent that payment of such interest is
lawful, interest on overdue interest and overdue
principal at the rate borne by the Notes, which has
become due otherwise than by such declaration of
acceleration; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(ii) no such rescission would conflict with any judgment or decree
of a court of competent jurisdiction; and
(iii) all Events of Default, other than the non-payment of amounts
of principal of (or premium, if any, on) or interest on the Notes which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 6.04.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
(d) Notwithstanding Section 6.02(c), in the event of a declaration
of acceleration in respect of the Notes because of an Event of Default specified
in Section 6.01(d) shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Debt that is the subject of
such Event of Default has been discharged or the Holders thereof have rescinded
their declaration of acceleration in respect of such Debt, and written notice of
such discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the Holders of such Debt or a
trustee, fiduciary or agent for such
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Holders, within 30 days after such declaration of acceleration in respect of the
Notes, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
Section 6.03 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Special Interest, if any, or interest
on, the Notes (including in connection with a Repurchase Offer); provided that
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default if it determines that
withholding notice is in their interest, except a Default or Event of Default
relating to the payment of principal or interest or Special Interest.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, a Holder of a Note may pursue a remedy with
respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with a Repurchase Offer), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Special Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and 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.
Section 6.09 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 proceedings, 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.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in Section 2.07, 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,
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and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes including the Subsidiary Guarantors), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian 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 directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained 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 Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
(a) If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
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(ii) to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Special Interest, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Special Interest, if any and interest, respectively; and
(iii) to the Company or to such party as a court of
competent jurisdiction shall direct including a Subsidiary Guarantor,
if applicable.
(b) The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.13.
Section 6.14 Undertaking for Costs.
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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its 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:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) 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. However, 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 examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section
7.01(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to Section
7.01(a), (b), and (c).
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture
(h) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Section 7.10 and Section
7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any
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money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest or Special Interest, if any, on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes and the Trustee shall withhold the notice of any Default under Section
6.01(f) until 30 days after notice under such section is given.
Section 7.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree in writing from time to time. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
(b) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
(c) To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
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(d) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(e) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Company's expense), the Company, or the Holders of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as
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Trustee to the successor Trustee; provided, all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10 Eligibility; Disqualification.
(a) There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 7.12 Appointment of Co-Trustee.
(a) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture,
and in particular in case of the enforcement thereof on default, or in the case
the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust, as herein
granted or take any action which may be desirable or necessary in connection
therewith, it may be necessary that the Trustee appoint an individual or
institution as a separate or co-trustee. The following provisions of this
Section are adopted to these ends.
(b) In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Trustee with respect thereto shall be exercisable by and vest
in such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction is incapable of
exercising such powers, rights and remedies and every
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covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
(c) Should any instrument in writing from the Company be required
by the separate or co-trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to it such properties, rights, powers,
trusts, duties and obligations, any and all such instruments in writing shall,
on request, be executed, acknowledged and delivered by the Company; provided,
that if an Event of Default shall have occurred and be continuing, if the
Company does not execute any such instrument within fifteen (15) days after
request therefor, the Trustee shall be empowered as an attorney-in-fact for the
Company to execute any such instrument in the Company's name and stead. In case
any separate or co-trustee or a successor to either shall die, become incapable
of acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
(d) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights and powers, conferred or imposed upon the
Trustee shall be conferred or imposed upon and may be exercised or
performed by such separate trustee or co-trustee; and
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder.
(e) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article.
(f) Any separate trustee or co-trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 be applied to all outstanding Notes upon compliance with
the conditions set forth below in this Article Eight.
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Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.02, the Company and the Subsidiary Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes and Guarantees on the date the conditions set forth below are satisfied
("Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all its other obligations under
such Notes and this Indenture including that of the Subsidiary Guarantors (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (a)
rights of registration of transfer and exchange and the right of optional
redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Notes, (c) rights of Holders to receive payment of principal and
interest on the Notes, (d) rights, obligations and immunities of the Trustee
under this Indenture and (e) rights of the Holders of the Notes as beneficiaries
of this Indenture with respect to any property deposited with the Trustee
payable to all or any of them. Subject to compliance with this Article Eight,
the Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.03, the Company and its Subsidiary Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04, be released
from their obligations under the covenants contained in Sections 4.03, 4.04,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.20 and 4.21 and clauses
(b) and (c) of Section 5.01 with respect to the outstanding Notes on and after
the date the conditions set forth in Section 8.04 are satisfied ("Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.01 of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04, Sections 6.01(e),
6.01(f), and 6.01(g) shall not constitute Events of Default.
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Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) The Company shall have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Notes, (A) money in an amount, or (B) Government
Securities which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of and premium, if any, and
interest, if any, under such Notes, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, the principal of (and premium, if any) and
interest, if any, on such Outstanding Notes on the Stated Maturity (or
redemption date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, in accordance with the terms of this Indenture
and of such Notes; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such Government Obligations to
said payments with respect to such Notes. Before such a deposit, the Company may
give to the Trustee, in accordance with Section 3.01 hereof, a notice of its
election to redeem all or any portion of such Notes at a future date in
accordance with the terms of the Notes and Article Three hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing.
(b) In the case of an election under Section 8.02, the Company
shall have delivered to the Trustee an Opinion of Counsel qualified to practice
law in the United States stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (y) since
the date of execution of this Indenture, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such outstanding
Notes will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Legal Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred.
(c) In the case of an election under Section 8.03, the Company
shall have delivered to the Trustee an Opinion of Counsel qualified to practice
law in the United States to the effect that the Holders of such outstanding
Notes will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Covenant Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred.
(d) In the case of an election under Section 8.02 or Section 8.03,
the Company shall have delivered to the Trustee an Opinion of Counsel qualified
to practice law in Canada or a ruling from Canada Customs and Revenue Agency to
the effect that the Holders of outstanding
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Notes will not recognize income, gain or loss for Canadian federal, provincial
or territorial income tax or other tax purposes as a result of such Legal
Defeasance or Covenant Defeasance (as the case may be) and will be subject to
Canadian federal or provincial income tax and other tax on the same amounts, in
the same manner and at the same times as would have been the case had such Legal
Defeasance or Covenant Defeasance (as the case may be) not occurred (and for the
purposes of such opinion, such Canadian counsel shall assume that Holders of the
Notes include Holders who are not resident in Canada).
(e) The Company is not an "insolvent person" within the meaning of
the Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(f) No Event of Default or event that, with the passing of time or
the giving of notice, or both, shall constitute an Event of Default with respect
to such Notes shall have occurred and be continuing on the date of such deposit
or, insofar as clauses (i) and (j) of Section 501(a) are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(g) The Company shall have delivered to the Trustee an Opinion of
Counsel qualified to practice law in the United States to the effect that such
deposit shall not cause the Trustee or the trust so created to be subject to the
Investment Company Act of 1940, as amended.
(h) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or its
Restricted Subsidiaries is a party or by which it is bound.
(i) Notwithstanding any other provisions of this Section 8.04,
such Legal Defeasance or Covenant Defeasance (as the case may be) shall be
effected in compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 2.01.
(j) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel qualified to practice law in the United
States, each stating that all conditions precedent provided for relating to
either the Legal Defeasance under Section 8.02 or the Covenant Defeasance under
Section 8.03 (as the case may be) have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
(a) Subject to Section 8.06, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company or a Subsidiary Guarantor acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon
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in respect of principal, premium and Special Interest, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
(b) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
(c) Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a)), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 8.06 Repayment to Company.
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, premium and
Special Interest, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium and Special Interest, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter 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 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 New York Times, The Wall Street Journal (national
edition), the Globe and Mail and the National Post, 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03, as the case may be, 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 Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03, as the case may
be; provided that, if the Company makes any payment of principal of, premium and
Special Interest, if any, or interest on any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE 9.
MODIFICATION AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture, the
Subsidiary Guarantees or the Notes without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of the Company's obligations to
Holders of Notes by a successor to the Company pursuant to Article 5 or Article
10 hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that in the good faith opinion of the Board
of Directors of the Company (evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee) does not
adversely affect the rights under this Indenture of any such Holder;
(5) to add a Subsidiary Guarantor;
(6) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(7) to issue Additional Notes in compliance with Section 4.06.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Subsidiary
Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
(a) Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture, the Subsidiary Guarantees
and the Notes with the consent of the Holders of at least a majority in
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Section 6.04 and Section 6.07, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium and Special Interest, if any, or
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interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded or arising from a failure to purchase any Note tendered
pursuant to an Offer to Purchase) or compliance with any provision of this
Indenture, the Subsidiary Guarantees or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes).
(b) Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02, the
Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless in the written opinion of the Trustee's counsel
delivered to the Holders, such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
(e) Without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note;
(ii) reduce the principal amount of, (or the premium) or
interest on, any Note;
(iii) change the place or currency of payment of principal
of (or premium), or interest on, any Note;
(iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any Note;
(v) reduce the above-stated percentage of Outstanding
Notes necessary to modify or amend this Indenture;
(vi) reduce the percentage of aggregate principal amount
of Outstanding Notes necessary for waiver of compliance with certain
provisions of this Indenture or for waiver of certain defaults;
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(vii) modify any provisions of this Indenture relating to
any Subsidiary Guarantee, the modification and amendment of this
Indenture or the waiver of past defaults or covenants, except as
otherwise specified; or
(viii) following the mailing of any Offer to Purchase,
modify any Offer to Purchase for the Notes required under Section 4.11
and Section 4.13 contained in this Indenture in a manner materially
adverse to the Holders thereof.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding Section 9.08(a), those Persons who were Holders at such record
date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date unless the consent of the requisite number
of Holders has been obtained.
Section 9.05 Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment, supplement
86
or waiver until the Board of Directors approves it. In executing any amendment,
supplement or waiver, the Trustee shall be entitled to receive and (subject to
Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 12.04, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10.
GUARANTEES
Section 10.01 Subsidiary Guarantee.
(a) Subject to this Article 10, each of the Subsidiary Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that: (a) the principal, interest, premium and Special Interest, if any, on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay the
same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenant that this Subsidiary
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture.
(c) The obligations of the Subsidiary Guarantor under its
Subsidiary Guarantee are independent of the obligations guaranteed by such
Subsidiary Guarantor hereunder, and a separate action or actions may be brought
and prosecuted by the Trustee on behalf of, or by, the Holders, subject to the
terms and conditions set forth in this Indenture against a Subsidiary
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Guarantor to enforce the Subsidiary Guarantee, irrespective of whether any
action is brought against the Company or whether the Company is joined in any
such action or actions.
(d) The Subsidiary Guarantor hereby agrees that, in the event of a
default in payment of principal (or premium and Special Interest, if any) or
interest on a Note, whether at its stated maturity, by acceleration, purchase or
otherwise, legal proceedings may be instituted by the Trustee on behalf of, or
by, the Holder of such Note, subject to the terms and conditions set forth in
this Indenture, directly against each of the Subsidiary Guarantors to enforce
such Subsidiary Guarantor's Subsidiary Guarantee without first proceeding
against the Company or any other Subsidiary Guarantor. The Subsidiary Guarantor
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Notes, to
collect interest on the Notes, or to enforce or exercise any other right or
remedy with respect to the Notes, such Subsidiary Guarantor shall pay to the
Trustee for the account of the Holder, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either the
Company or the Subsidiary Guarantors, any amount paid either to the Trustee or
such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article 6, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of this
Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Guarantee.
(g) Each Subsidiary Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation, reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company's assets,
and shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Notes are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes or Subsidiary
Guarantees, whether as a "voidable preference", "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Note shall, to the
88
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned. The form of
Subsidiary Guarantee is attached hereto as Exhibit E.
(h) In case any provision of any Subsidiary Guarantee 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.
(i) The Subsidiary Guarantees will be general unsecured
obligations of the Subsidiary Guarantors and will rank equally with all existing
and future unsecured debt of the Subsidiary Guarantors that is not, by its
terms, expressly subordinated in right of payment to the Subsidiary Guarantees.
The Subsidiary Guarantees will be effectively subordinated to any existing and
all future secured debt of the Subsidiary Guarantors to the extent of the assets
securing such debt.
(j) Each payment to be made by a Subsidiary Guarantor in respect
of its Subsidiary Guarantee shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
Section 10.02 Limitation on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
United States federal or state law or Canadian federal or provincial law
relating to fraudulent transfer or conveyance. To effectuate the foregoing
intention, the Trustee, the Holders and the Subsidiary Guarantors hereby
irrevocably agree that the obligations of each Subsidiary Guarantor shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
United States of Canadian law. Each Subsidiary Guarantor that makes a payment or
distribution under a Guarantee shall be entitled to a contribution from each
other Subsidiary Guarantor in an amount pro rata based on the net assets of each
Subsidiary Guarantor, determined in accordance with GAAP.
Section 10.03 Execution and Delivery of Subsidiary Guarantee.
(a) To evidence its Subsidiary Guarantee set forth in Section
10.01, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Subsidiary Guarantor by its President or one of its Vice Presidents.
89
(b) Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
(c) If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
(e) In the event that the Company creates or acquires any new
Restricted Subsidiaries subsequent to the date of this Indenture, if required by
Section 4.15, the Company shall cause such Restricted Subsidiaries to execute
supplemental indentures to this Indenture and Subsidiary Guarantees in
accordance with Section 4.15 and this Article 10, to the extent applicable.
Section 10.04 Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as otherwise provided in Section 10.05, the Company may
not permit any Subsidiary Guarantor to amalgamate or consolidate with or merge
with or into any Person or sell, assign, transfer, convey or otherwise dispose
of, all or substantially all of its assets, in one or more related transactions,
to any Person unless:
(i) the other Person is the Company or any Wholly Owned
Restricted Subsidiary that is a Subsidiary Guarantor or becomes a
Subsidiary Guarantor concurrently with the transaction;
(ii) (A) either (x) the Subsidiary Guarantor shall be the
surviving Person or (y) the entity formed by such amalgamation,
consolidation or into which the Subsidiary Guarantor is merged or the
Person acquiring the property in such sale or other disposition,
expressly assumes the Subsidiary Guarantor's Subsidiary Guarantee and
all the obligations of such Subsidiary Guarantor under the Notes, this
Indenture and the Subsidiary Guarantee and such Person is organized
under the laws of the United States, any state thereof, the District of
Columbia or Canada, or any province or territory thereof and (B)
immediately after giving effect to the transaction and any related
Incurrence of Debt, no Default or Event of Default shall have occurred
and be continuing; or
(iii) the transaction constitutes a sale or other
disposition (including by way of amalgamation, consolidation or merger)
of the Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of the Subsidiary Guarantor (in each case
other than to another Subsidiary Guarantor) and at the time of such
transaction after giving pro forma effect thereto, the provisions of
clause (b) of Section 5.01 would be satisfied and the transaction is
otherwise permitted by this Indenture.
(b) In case of any such consolidation, amalgamation, merger, sale
or conveyance and upon the assumption by the successor Person (where
applicable), by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Guarantee
90
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any
or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Subsidiary Guarantees so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5, and notwithstanding
Section 10.04(a) and Section 10.04(b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into the Company or another Subsidiary Guarantor, or shall
prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Guarantor.
Section 10.05 Releases From Subsidiary Guarantees.
(a) A Subsidiary Guarantor will be automatically and
unconditionally released and relieved of any and all of its obligations under
its Subsidiary Guarantee upon any of the following:
(i) in the event of a sale or other disposition, by way
of merger, consolidation or otherwise, of all the Capital Stock of any
Subsidiary Guarantor to any Person that is not an Affiliate of the
Company, such Subsidiary Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee; provided that the Net
Available Cash from such sale or other disposition is applied in
accordance with the applicable provisions of Section 4.11.
(ii) the repayment in full, release or discharge of all
Debt of such Subsidiary Guarantor Incurred pursuant to Section 4.06(a)
(including any refinancings thereof) that, pursuant to Section 4.06(a),
previously had resulted in the creation of the Subsidiary Guarantee of
such Subsidiary Guarantor; and
(iii) the designation of any Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the terms of this Indenture.
(b) In each such case set forth in clauses (i), (ii) and (iii) of
Section 10.05(a), prior to release and discharge of such Subsidiary Guarantee,
the Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel qualified in the United States, each stating that all
conditions precedent herein provided for relating to such transactions have been
complied with and that such release is authorized and permitted hereunder.
(c) The Trustee shall execute any documents reasonably requested
by either the Company or a Subsidiary Guarantor in order to evidence the release
of such Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
under this Article 10.
91
(d) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Subsidiary Guarantor under this Indenture as provided in this Article 10.
Section 10.06 Subrogation.
Each Subsidiary Guarantor shall be subrogated to all rights of Holders
of Notes against the Company in respect of any amounts paid by any Subsidiary
Guarantor pursuant to the provisions of Section 10.01; provided that, if an
Event of Default has occurred and is continuing, no Subsidiary Guarantor shall
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all amounts then due and payable by the Company
under this Indenture or the Notes shall have been paid in full.
Section 10.07 Benefits Acknowledged.
Each Subsidiary Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the guarantee and waivers made by it pursuant to its Subsidiary
Guarantee are knowingly made in contemplation of such benefits.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a) This Indenture will cease to be of further effect as to all
Notes then outstanding except as (i) rights of registration of transfer and
exchange and the right of optional redemption, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen notes, (iii) rights of Holders to
receive payment of principal and interest on the notes, (iv) rights, obligations
and immunities of the Trustee under the Indenture and (v) rights of the Holders
of the notes as beneficiaries of the Indenture with respect to any property
deposited with the Trustee payable to all or any of them, when:
(i) either
(A) all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has been deposited
in trust and thereafter repaid to the Company, have been
delivered to the Trustee for cancellation; or
(B) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the Company
or any Subsidiary Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination
of cash in U.S. dollars and non-callable Government
Securities, in
92
amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Special Interest, if
any, and accrued interest to the date of maturity or
redemption;
(ii) no Default or Event of Default shall have occurred
and be continuing on the date of the deposit or shall occur as a result
of the deposit and the deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company or any Subsidiary Guarantor is a party or by which the Company
or any Subsidiary Guarantor is bound;
(iii) the Company or any Subsidiary Guarantor has paid or
caused to be paid all sums payable by it under this Indenture;
(iv) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at Stated Maturity or the redemption date, as
the case may be; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel qualified in the United
States, each stating that, as required by Section 12.04, all conditions
precedent herein provided for relating to such transactions have been
complied with and that such release is authorized and permitted
hereunder.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, if money shall have been deposited with the Trustee pursuant to
Section 11.01(a)(ii), the provisions of Section 11.02 and Section 8.06 shall
survive.
Section 11.02 Application of Trust Money.
(a) Subject to the provisions of Section 8.06, all money deposited
with the Trustee pursuant to Section 11.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium and Special Interest, if any)
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
(b) If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Subsidiary Guarantor's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01; provided that if the Company has made any payment of
principal of, premium and Special Interest, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.
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ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 12.02 Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Subsidiary Guarantor:
Xxxxxx Metals Inc.
Xxxxx 000- 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Royal Bank Plaza
000 Xxx Xxxxxx
Xxxxx 0000, X.X. Xxx 000
Xxxxxxx, Xxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxx
If to the Trustee:
U.S. Bank National Association
000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
94
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery; provided that any notice or communication
delivered to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company or any of the
Restricted Subsidiaries to the Trustee to take any action under this Indenture,
the Company or such Subsidiary Guarantor, as the case may be, shall furnish to
the Trustee an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) An Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 below) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 4.03 or TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
95
(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 such Person, he or she 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, in the case of an Opinion of Counsel, may be limited to
reliance on an Officers Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Trustees, Employees,
Shareholders, Partners and Principals.
No past, present or future director, officer, employee, incorporator or
shareholder of the Company or any Subsidiary Guarantor, as such, shall have any
liability for any obligations of the Company or the Subsidiary Guarantors under
the Notes, this Indenture, the Subsidiary Guarantees, or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
of Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
Section 12.08 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section 12.09 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.10 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations under this Indenture arising out
of or caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural
96
catastrophes or acts of god, and interruptions, loss or malfunctions of
utilities, communications or computer (software or hardware) services.
Section 12.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or their Restricted Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.12 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Subsidiary Guarantor in this
Indenture shall bind its successors, except as otherwise provided in Section
10.05.
Section 12.13 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, the Company and each
of the non-U.S. Subsidiary Guarantors (i) acknowledges that it has, by separate
written instrument, irrevocably designated and appointed FIL (US) Inc., c/o CT
Corporation System, Xxxxx 000, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000,
as its authorized agent upon which process may be served in any suit, action or
proceeding arising out of or relating to the Notes, the Subsidiary Guarantees or
this Indenture that may be instituted in any U.S. federal or state court located
in the Borough of Manhattan in The City of New York, or brought under federal or
state securities laws or brought by the Trustee (whether in its individual
capacity or in its capacity as Trustee hereunder), and acknowledges that FIL
(US) Inc. has accepted such designation, (ii) submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding, and (iii)
agrees that service of process upon FIL (US) Inc. and written notice of said
service to it (mailed or delivered to its Chief Financial Officer at its
principal office in Mississauga, Ontario as specified in Section 12.02), shall
be deemed in every respect effective service of process upon it in any such suit
or proceeding. The Company further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment in full force and
effect so long as this Indenture shall be in full force and effect.
To the extent that any of the Company or the Subsidiary Guarantors 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, each of the Company and the Subsidiary Guarantors hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and the Notes, to the extent permitted by law.
Section 12.14 Conversion of Currency.
(a) (i) If for the purpose of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes necessary to
convert into any other currency (the "judgment currency") an amount due in U.S.
dollars, then the conversion shall be made at the rate of
97
exchange prevailing on the Business Day before the day on which the judgment is
given or the order of enforcement is made, as the case may be (unless a court
shall otherwise determine). (ii) If there is a change in the rate of exchange
prevailing between the Business Day before the day on which the judgment is
given or an order of enforcement is made, as the case may be (or such other date
as a court shall determine), and the date of receipt of the amount due, the
Company will pay such additional (or, as the case may be, such lesser) amount,
if any, as may be necessary so that the amount paid in the judgment currency
when converted at the rate of exchange prevailing on the date of receipt will
produce the amount in U.S. dollars originally due.
(b) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Notes, Subsidiary Guarantees or this
Indenture, or any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders and the Trustee
harmless against any deficiency arising or resulting from any variation in rates
of exchange between (1) the date as of which the equivalent of the amount in
U.S. dollars due or contingently due under the Notes, Subsidiary Guarantees or
this Indenture (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this clause (b), the final date for
the filing of proofs of claim in the winding-up of the Company shall be the date
fixed by the liquidator or otherwise in accordance with the relevant provisions
of applicable law as being the latest practicable date as at which liabilities
of the Company may be ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The obligations contained in clauses 12.14(a)(ii) and (b)
shall constitute separate and independent obligations of the Company from its
other obligations under the Notes, Subsidiary Guarantees and this Indenture,
shall give rise to separate and independent causes of action against the
Company, shall apply irrespective of any waiver or extension granted by any
Holder or Trustee or either of them from time to time and shall continue in full
force and effect notwithstanding any judgment or order or the filing of any
proof of claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under clause 12.14(b)) or under any such
judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustee, as the case may be,
and no proof or evidence of any actual loss shall be required by the Company,
the Subsidiary Guarantors or the liquidator or otherwise. In the case of clause
12.14(b) above, the amount of such deficiency shall not be deemed to be reduced
by any variation in rates of exchange occurring between the said final date and
the date of any liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by the Federal Reserve Bank of New York, noon buying rate on the date of
determination for purchases of U.S. dollars with the judgment currency other
than U.S. dollars referred to in Clauses (a) and (b) above and includes any
premiums and costs of exchange payable.
(e) The Trustee shall have no duty or liability with respect to
monitoring or enforcing this Section 12.14.
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Section 12.15 Currency Equivalent.
Except as provided in Section 12.14, for purposes of the construction
of the terms of this Indenture or of the Notes and Subsidiary Guarantees, in the
event that any amount is stated herein in the currency of one nation (the "First
Currency"), as of any date such amount shall also be deemed to represent the
amount in the currency of any other relevant nation (the "Other Currency") which
is required to purchase such amount in the First Currency at the rate of
exchange quoted by the Federal Reserve Bank of New York, noon buying rate on the
date of determination.
Section 12.16 Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.17 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.18 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
XXXXXX METALS INC.
BY: /S/ XXXXX X. XXXXXX
--------------------------------------------
NAME: XXXXX X. XXXXXX
TITLE: EXECUTIVE VICE PRESIDENT & CFO
BY: /S/ XXXXXX X. XXXXXXX
--------------------------------------------
NAME: XXXXXX X. XXXXXXX
TITLE: VICE PRESIDENT & CONTROLLER
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
BY: /S/ XXXXX XXXXXXXX
--------------------------------------------
NAME: XXXXX XXXXXXXX
TITLE: VICE PRESIDENT
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert Canadian Resale Legend, if applicable pursuant to the
provisions of the Indenture]
Rule 144A Note CUSIP: 781903 AF 6
Regulation S Note CUSIP: C81175 AA 6
6-3/8% Senior Notes due March 1, 2014
No. ___ US$____________
XXXXXX METALS INC.
promises to pay to _____________________________ or registered assigns,
the principal sum of ___________________________________________________________
Dollars on March 1, 2014.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
A-2
IN WITNESS HEREOF, the Company has caused this instrument to be duly
executed.
Dated:
XXXXXX METALS INC.
BY: _____________________________________
NAME:
TITLE:
BY: ______________________________________
NAME:
TITLE:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
BY: ______________________________________
Authorized Signatory
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[Back of Note]
6-3/8% Senior Notes due March 1, 2014
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Xxxxxx Metals Inc., a corporation existing under the laws
of Canada (the "Company"), promises to pay interest on the principal amount of
this Note at 6.375% per annum from September 1, 2004 until maturity. The Company
will pay interest semi-annually in arrears on February 15 and August 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that the first Interest Payment Date
shall be September 1, 2004. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. For the purposes of disclosure under the
Interest Act (Canada), the yearly rate of interest which is equivalent to the
rate payable hereunder is the rate payable multiplied by the actual number of
days in the year divided by 360.
2. SPECIAL INTEREST. The Holder is entitled to the benefits of the
Registration Rights referred to below. In the event that (a) the Exchange Offer
Registration Statement (as defined in the Registration Rights Agreement) is not
filed with the Commission on or prior to the 90th calendar day following the
date of the Indenture, (b) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the date of the
Indenture, (c) the Exchange Offer (as defined in the Registration Rights
Agreement) is not consummated on or prior to the 225th day following the date of
the Indenture, (d) if on or prior to the 60th day following the date the
obligation to file the Shelf Registration Statement (as defined in the
Registration Rights Agreement) arises, the Shelf Registration Statement has not
filed with the Commission, (e) on or prior to the 150th day following the date
the obligation to file the Shelf Registration Statement arises, the Shelf
Registration Statement has not been declared effective, or (f) after the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Notes or Exchange Notes (each
event referred to in clauses (a) through (f) above, a "Registration Deadline
Event"), then the Company will be required to pay additional interest ("Special
Interest") in cash on March 1 and September 1 of each year, commencing on the
first such date following any Registration Deadline Event, at a rate per annum
equal to 0.25% of the principal amount of the Notes (determined daily) with
respect to the first 90-day period following such Registration Deadline Event.
Such amount of Special Interest shall increase by an additional 0.25% per annum
to a maximum of 1.00% per annum for each subsequent 90-day period until such
Registration Deadline Event has been cured. Upon the cure of any Registration
Deadline Event, Special Interest with respect to such event shall cease to
accrue from the date of the filing, effectiveness or consummation that cured
such event, as the
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case may be, if the Company is otherwise in compliance with this paragraph.
However, if, after any such Special Interest ceases to accrue, a different
Registration Deadline Event occurs, Special Interest will again accrue as
described.
3. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the March 1 or September
1 (whether or not a Business Day), as the case may be, next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. Payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Special Interest, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be 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.
4. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to the Holders. The Company or any of the Restricted Subsidiaries may act in any
such capacity.
5. INDENTURE. The Company issued the Notes under an Indenture dated as
of February 20, 2004 (the "Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.
6. OPTIONAL REDEMPTION.
(a) The Notes will be subject to redemption at the option of the
Company, in whole or in part, at any time on or after March 1, 2009 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Register, in amounts of US$1,000 or an integral multiple of US$1,000, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued interest to but excluding the redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date that is on or prior to the redemption date), if redeemed
during the 12-month period beginning on March 1 of the years indicated:
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EXHIBIT A
YEAR PERCENTAGE
2009................................................... 103.188%
2010................................................... 102.125%
2011................................................... 101.063%
2012 and thereafter.................................... 100.000%
(b) The Notes will be subject to redemption prior to March 1, 2007
only in the event that the Company receives net proceeds from the sale of its
Common Stock in one or more Public Equity Offerings, in which case the Company
may, at its option, use all or a portion of any such net proceeds to redeem
notes in a principal amount of at least US$5.0 million and up to an aggregate
amount equal to 35% of the original principal amount of the Notes (including
Additional Notes); provided, however, that Notes in an amount equal to at least
65% of the original principal amount of the Notes (including Additional Notes)
remain outstanding after each such redemption. Any such redemption must occur on
a redemption date within 75 days of the completion of such Public Equity
Offering and upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Register, in amounts of US$1,000 or an integral multiple of US$1,000, at a
redemption price of 106.375% of the principal amount of the Notes plus accrued
interest to but excluding the redemption date (subject to the right of Holders
of record on the relevant Record Date to receive interest due on an Interest
Payment Date that is on or prior to the redemption date).
(c) Except pursuant to the preceding paragraph and as described
below under clause (d) hereof, the Notes will not be redeemable at the Company's
option before March 1, 2009.
(d) The Notes will be subject to redemption at the option of the
Company, as a whole but not in part, at any time upon not fewer than 30 nor more
than 60 days' notice mailed to each Holder of Notes at the addresses appearing
in the Register at a redemption price equal to 100% of the principal amount of
the Notes plus accrued interest, to but excluding the redemption date if the
Company has become or would become obligated to pay on the next date on which
any amount would be payable under or with respect to the Notes, any Additional
Amounts as a result of any change or amendment to the laws (or regulations
promulgated thereunder) of Canada (or any political subdivision or taxing
authority thereof or therein) (collectively, a "Taxing Authority"), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
EXHIBIT A
8. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer to each Holder to repurchase all or any part (equal to US$1,000 or an
integral multiple thereof) of each Holder's Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Special Interest thereon, if any, to the date of purchase (the "Change of
Control Payment"). The Change of Control Offer to Purchase shall be made in
accordance with Section 3.09 and Section 4.13 of the Indenture.
(b) If the Company or any of its Restricted Subsidiaries consummates an
Asset Disposition, within five days of each date on which the aggregate amount
of Excess Proceeds exceeds US$10.0 million, the Company shall commence an offer
(an "Offer to Purchase") to all Holders of Notes and all Holders of other Debt
that is pari passu with the Notes pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes (including any Additional Notes)
and such other pari passu Debt that may be purchased out of the Excess Proceeds
at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Special Interest thereon, if any,
to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount
of Notes (including any Additional Notes) and other pari passu Debt tendered
pursuant to an Offer to Purchase is less than the Excess Proceeds, the Company
(or such Restricted Subsidiary) may use those Excess Proceeds for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and other pari passu Debt tendered pursuant to an Offer to Purchase
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu Debt to be purchased on a pro rata basis. Holders of Notes
that are the subject of an offer to purchase will receive an Offer to Purchase
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date (except that
redemption notices may be mailed more than 60 days prior to a redemption date if
the notice is issued in connection with Article 8 or Article 11 of the
Indenture) to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than US$1,000 may be redeemed in part but
only in whole multiples of US$1,000, unless all of the Notes held by a Holder
are to be redeemed. On and after the redemption date interest ceases to accrue
on Notes or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of US$1,000 and integral multiples of US$1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange
EXHIBIT A
or register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. MODIFICATION AND WAIVER. Subject to certain exceptions, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes and Additional Notes, if any, voting as a single
class, and any existing default or compliance with any provision of the
Indenture, the Subsidiary Guarantees or the Notes may be waived (other than a
Default or Event of Default in the payment of the principal of, premium and
Special Interest, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) with the consent of the
Holders of a majority in principal amount of the then outstanding Notes and
Additional Notes, if any, voting as a single class. Without the consent of any
Holder of a Note, the Indenture, the Subsidiary Guarantees or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger, consolidation or sale of assets, to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder, to add a Subsidiary Guarantor, to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended, to provide
for the Issuance of Additional Notes in accordance with the limitations set
forth in the Indenture, or to allow any Subsidiary Guarantor to execute a
supplemental indenture to the Indenture and/or a Subsidiary Guarantee with
respect to the Notes.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes
are defined in Section 6.01 of the Indenture. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture, the Notes or the Subsidiary Guarantees except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, premium or Special
Interest, if any, or interest) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest or Special Interest, if any, on, or the principal of,
or premium, if any, on the Notes.
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13. AUTHENTICATION. This Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose until
authenticated by the manual or facsimile signature of the Trustee.
14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement, dated as of February 20, 2004, between the Company and the parties
named on the signature pages thereof (the "Registration Rights Agreement"),
including the right to receive Special Interest (as defined in the Registration
Rights Agreement).
15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Xxxxxx Metals Inc.
Xxxxx 000- 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Assistant Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:______________________
YOUR SIGNATURE_____________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:_________________________________________
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to
the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or 4.13 of the Indenture, check the appropriate box
below:
[ ] Section 4.11 [ ] Section 4.13
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount you elect to have purchased:
US$_______________
Date:______________________
YOUR SIGNATURE:______________________________
(Sign exactly as your name appears on
the face of this Note)
TAX IDENTIFICATION NO.:______________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to
the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized officer
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease or increase Custodian
---------------- ------------------- ---------------------- -------------------- ------------------
-------------------------
*This schedule should be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxxx Metals Inc.
Xxxxx 000- 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
U.S. Bank National Association
000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
Re: 6-3/8% Senior Notes due March 1, 2014
Reference is hereby made to the Indenture, dated as of February 20,
2004 (the "Indenture"), among Xxxxxx Metals Inc., a corporation existing under
the laws of Canada and U.S. Bank National Association, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of US$ __________ in such Note[s] or interests (the
"Transfer"), to ___________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States.
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2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Indenture and
the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of
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Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Notes and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[INSERT NAME OF TRANSFEROR]
BY: ___________________________
NAME:
TITLE:
Dated: _______________________
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ANNEX A TO CERTIFICATE OF TRANSFER
5. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(b) [ ] a Restricted Definitive Note.
6. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxxx Metals Inc.
Xxxxx 000- 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
U.S. Bank National Association
000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
Re: 6-3/8% Senior Notes due March 1, 2014
Reference is hereby made to the Indenture, dated as of February 20,
2004 (the "Indenture"), among Xxxxxx Metals Inc., a corporation existing under
the laws of Canada and U.S. Bank National Association, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
_______________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
US$ ________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
C-1
b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Owner's Exchange for a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's
Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities
Act and (iv) the Unrestricted Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Note
is being acquired for the Owner's own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of
the Indenture, the Restricted Definitive Note issued will continue to
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.
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b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's Restricted Definitive Note for a
beneficial interest in the 144A Global Note, with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Exchange in accordance with the terms
of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and are dated __________________.
[INSERT NAME OF TRANSFEROR]
BY: ________________________________
NAME:
TITLE:
DATE: __________________________________________________________________________
_____________________________________________________________________________
C-2
EXHIBIT D
[FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR]
Xxxxxx Metals Inc.
Xxxxx 000- 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
U.S. Bank National Association
000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
Re: 6-3/8% Senior Notes due March 1, 2014
Reference is hereby made to the Indenture, dated as of February 20,
2004 (the "Indenture"), among Xxxxxx Metals Inc., a corporation existing under
the laws of Canada and U.S. Bank National Association, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of US$ _____________ aggregate
principal amount of:
a) [ ] a beneficial interest in a Global Note, or
b) [ ] a Definitive Note,
we confirm that:
1) We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2) We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
D-1
Company a signed letter substantially in the form of this letter and an Opinion
of Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3) We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4) We are an institutional "accredited investor" (within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5) We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[INSERT NAME OF ACCREDITED INVESTOR]
BY: ________________________________
NAME:
TITLE:
Dated: _______________________
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Subsidiary Guarantor (which term includes any
successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture (as defined
below) and subject to the provisions in the Indenture dated as of February 20,
2004 (the "Indenture") among Xxxxxx Metals Inc., a corporation existing under
the laws of Canada and U.S. Bank National Association, as Trustee (the
"Trustee"), (a) the due and punctual payment of the principal of, premium and
Special Interest, if any, and interest on the Notes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise, the
due and punctual payment of interest on overdue principal and premium, and, to
the extent permitted by law, interest, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Subsidiary Guarantors to the
Holders of Notes and to the Trustee pursuant to this Subsidiary Guarantee and
the Indenture are expressly set forth in the Indenture and reference is hereby
made to the Indenture for the precise terms of the Subsidiary Guarantee.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS SUBSIDIARY GUARANTEE.
[NAME OF SUBSIDIARY GUARANTOR(S)]
BY: ______________________________
NAME:
TITLE:
E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________, among ___________ (the "Subsidiary Guarantor"), a subsidiary of Xxxxxx
Metals Inc.,a corporation existing under the laws of Canada (the "Company"), the
Company, and U.S. Bank National Association, as Trustee under this Indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of February 20, 2004 providing
for the issuance of an unlimited aggregate principal amount of Senior Notes due
March 1, 2014 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Subsidiary Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Subsidiary Guarantor shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:
1) CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2) AGREEMENT TO GUARANTEE. The Subsidiary Guarantor hereby agrees
as follows:
(a) Along with all Subsidiary Guarantors named in the
Indenture, to jointly and severally unconditionally guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest and Special
Interest, if any, on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and
thereof; and
F-1
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary
Guarantors shall be jointly and severally obligated to pay the
same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(c) The obligations of the Subsidiary Guarantor under the
Subsidiary Guarantee are independent of the obligations guaranteed by
such Subsidiary Guarantor hereunder, and a separate action or actions
may be brought and prosecuted by the Trustee on behalf of, or by, the
Holders, subject to the terms and conditions set forth in the
Indenture, against a Subsidiary Guarantor to enforce the Subsidiary
Guarantee, irrespective of whether any action is brought against the
Company or whether the Company is joined in any such action or actions.
(d) In the event of a default in payment of principal (or
premium and Special Interest, if any) or interest on a Note, whether at
its stated maturity, by acceleration, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Note, subject to the terms and conditions set forth in
the Indenture, directly against the Subsidiary Guarantor to enforce the
Subsidiary Guarantee without first proceeding against the Company or
any other Subsidiary Guarantor. If, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights
to accelerate the maturity of the Notes, to collect interest on the
Notes, or to enforce or exercise any other right or remedy with respect
to the Notes, the Subsidiary Guarantor shall pay to the Trustee for the
account of the Holder, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
(e) The following is hereby waived: diligence
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever.
(f) This Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the
Notes, the Indenture and this Supplemental Indenture, and the
Subsidiary Guarantor accepts all obligations of a Subsidiary Guarantor
under the Indenture.
F-2
(g) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Subsidiary Guarantors, or
any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Subsidiary Guarantors, any amount
paid either to the Trustee or such Holder, this Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force
and effect.
(h) The Subsidiary Guarantor shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(i) As between the Subsidiary Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for the
purpose of this Subsidiary Guarantee.
(j) The Subsidiary Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise
of such right does not impair the rights of the Holders under the
Guarantee.
(k) Pursuant to Section 10.02 of the Indenture, after
giving effect to all other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws,
and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under Article 10 of the Indenture, this new
Subsidiary Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Subsidiary Guarantor under this
Subsidiary Guarantee will not constitute a fraudulent transfer or
conveyance.
(l) The Subsidiary Guarantee shall remain in full force
and effect and continue to be effective should any petition be filed by
or against the Company for liquidation, reorganization, should the
Company become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the Company's assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Notes
are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Notes and
Subsidiary Guarantees, whether as a "voidable preference", "fraudulent
transfer" or otherwise, all as though such payment or performance had
not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Note shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or
returned. The form of Subsidiary Guarantee is attached to the Indenture
as Exhibit E.
F-3
(m) In case any provision of the Subsidiary Guarantee
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.
(n) The Subsidiary Guarantees shall be general unsecured
obligations of the Subsidiary Guarantors and shall rank equally with
all existing and future unsecured debt of the Subsidiary Guarantors
that is not, by its terms, expressly subordinated in right of payment
to the Subsidiary Guarantees. The Subsidiary Guarantees will be
effectively subordinated to any existing and all future secured debt of
the Subsidiary Guarantors to the extent of the assets securing such
debt.
(o) Each payment to be made by the Subsidiary Guarantor
in respect of the Subsidiary Guarantee shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
3) EXECUTION AND DELIVERY. Each Subsidiary Guarantor agrees that
the Subsidiary Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
4) SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as otherwise provided in Section 10.05 of the
Indenture, the Company shall not permit any Subsidiary Guarantor to amalgamate
or consolidate with or merge with or into any Person or sell, assign, transfer,
convey or otherwise dispose of, all or substantially all of its assets, in one
or more related transactions, to any Person unless:
(1) the other Person is the Company or any Wholly Owned
Restricted Subsidiary that is a Subsidiary Guarantor or becomes a
Subsidiary Guarantor concurrently with the transaction;
(2) (i) either (x) the Subsidiary Guarantor shall be the
surviving Person or (y) the entity formed by such amalgamation,
consolidation or into which the Subsidiary Guarantor is merged or the
Person acquiring the property in such sale or other disposition,
expressly assumes the Subsidiary Guarantor's Subsidiary Guarantee and
all the obligations of such Subsidiary Guarantor under the Notes, this
Indenture and the Subsidiary Guarantee and such Person is organized
under the laws of the United States, any state thereof, the District of
Columbia or Canada, or any province or territory thereof and (ii)
immediately after giving effect to the transaction and any related
Incurrence of Debt, no Default or Event of Default shall have occurred
and be continuing; or
(3) the transaction constitutes a sale or other
disposition (including by way of amalgamation, consolidation or merger)
of the Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of the Subsidiary Guarantor (in each case
other than to another Subsidiary Guarantor) and at the time of such
transaction after giving pro forma effect thereto, the provisions of
clause (b) of Section 5.01 would be satisfied and the transaction is
otherwise permitted by this Indenture.
F-4
(b) In case of any such consolidation, amalgamation, merger, sale
or conveyance and upon the assumption by the successor Person (where
applicable), by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Subsidiary Guarantor, such
successor Person shall succeed to and be substituted for the Guaranteeing with
the same effect as if it had been named herein as a Subsidiary Guarantor. Such
successor Person thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the Indenture
as though all of such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into the Company or another Subsidiary Guarantor, or shall
prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Guarantor.
5) RELEASES.
a) A Subsidiary Guarantor will be automatically and unconditionally
released and relieved of any and all of its obligations under its
Subsidiary Guarantee upon any of the following:
(i) in the event of a sale or other disposition, by way
of merger, consolidation or otherwise, of all the Capital Stock of any
Subsidiary Guarantor to any Person that is not an Affiliate of the
Issuer, such Subsidiary Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee; provided that the Net
Available Cash from such sale or other disposition is applied in
accordance with the applicable provisions of Section 4.11 of the
Indenture.
(ii) the repayment in full, release or discharge of all
Debt of such Subsidiary Guarantor Incurred pursuant to Section 4.06(a)
of the Indenture (including any refinancings thereof) that, pursuant to
Section 4.06(a) of the Indenture, previously had resulted in the
creation of the Subsidiary Guarantee of such Subsidiary Guarantor; and
(iii) the designation of any Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the terms of this Indenture.
(d) In each such case set forth in clauses (i), (ii) and (iii) of
Section 5(a) hereof, prior to release and discharge of such Subsidiary
Guarantee, the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel qualified in the United States, each
stating that, as required by Section 12.04 of the Indenture, all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
F-5
(e) The Trustee shall execute any documents reasonably requested
by either the Company or a Subsidiary Guarantor in order to evidence the release
of such Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
under Article 10 of the Indenture.
(f) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Subsidiary Guarantor under this Indenture as provided in Article 10 of the
Indenture.
6) NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, shareholder or agent of the
Subsidiary Guarantor, as such, shall have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
7) THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE
GUARANTEES.
8) COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9) EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10) THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Subsidiary Guarantor and the
Company.
11) SUBROGATION. Each Subsidiary Guarantor shall be subrogated to
all rights of Holders of Notes against the Company in respect of any amounts
paid by the Subsidiary Guarantor pursuant to the provisions of Section 2;
provided, however, that, if an Event of Default has occurred and is continuing,
no Subsidiary Guarantor shall be entitled to enforce or receive any payments
arising out of, or based upon, such right of subrogation until all amounts then
due and payable by the Company under the Indenture or the Notes shall have been
paid in full.
12) BENEFITS ACKNOWLEDGED. Each Subsidiary Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by the Indenture and this Supplement Indenture and
that the guarantee and waivers made by it pursuant to its Subsidiary Guarantee
are knowingly made in contemplation of such benefits.
F-6
13) SUCCESSORS. All agreements of the Subsidiary Guarantor in this
Supplemental Indenture shall bind its Successors, except as otherwise provided
in Section 2(k) or elsewhere in this Supplemental Indenture. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors.
F-7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
Dated:
XXXXXX METALS INC.
BY: _______________________________
NAME:
TITLE:
BY: _______________________________
NAME:
TITLE:
[SUBSIDIARY GUARANTOR]
BY: _______________________________
NAME:
TITLE:
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
BY: _______________________________
AUTHORIZED SIGNATORY
F-8
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE................................................ 1
Section 1.01 Definitions...................................................................... 1
Section 1.02 Other Definitions................................................................ 22
Section 1.03 Incorporation by Reference of Trust Indenture Act................................ 24
Section 1.04 Rules of Construction............................................................ 24
ARTICLE 2. THE NOTES................................................................................. 25
Section 2.01 Form and Dating; Terms........................................................... 26
Section 2.02 Execution and Authentication..................................................... 26
Section 2.03 Registrar and Paying Agent for the Notes......................................... 27
Section 2.04 Paying Agent to Hold Money in Trust.............................................. 27
Section 2.05 Holder Lists..................................................................... 27
Section 2.06 Transfer and Exchange............................................................ 28
Section 2.07 Replacement Notes................................................................ 39
Section 2.08 Outstanding Notes................................................................ 40
Section 2.09 Treasury Notes................................................................... 40
Section 2.10 Temporary Notes.................................................................. 40
Section 2.11 Cancellation..................................................................... 41
Section 2.12 Defaulted Interest............................................................... 41
ARTICLE 3. REDEMPTION................................................................................ 42
Section 3.01 Notices to Trustee............................................................... 42
Section 3.02 Selection of Notes to be Redeemed................................................ 42
Section 3.03 Notice of Redemption............................................................. 42
Section 3.04 Effect of Notice of Redemption................................................... 43
Section 3.05 Deposit of Redemption Price...................................................... 43
Section 3.06 Notes Redeemed in Part........................................................... 44
Section 3.07 Optional Redemption.............................................................. 44
Section 3.08 Mandatory Redemption............................................................. 45
Section 3.09 Offer to Purchase................................................................ 45
ARTICLE 4. COVENANTS................................................................................. 47
Section 4.01 Payment of Notes................................................................. 47
Section 4.02 Maintenance of Office or Agency.................................................. 47
Section 4.03 Compliance Certificate........................................................... 48
Section 4.04 Taxes............................................................................ 48
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Section 4.05 Stay, Extension and Usury Laws................................................... 48
Section 4.06 Limitation on Debt............................................................... 49
Section 4.07 Limitation on Restricted Payments................................................ 51
Section 4.08 Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.......................................................... 55
Section 4.09 Limitation on Liens.............................................................. 56
Section 4.10 Limitation on Sale-Leaseback Transactions........................................ 58
Section 4.11 Limitation on Asset Dispositions................................................. 58
Section 4.12 Transactions with Affiliates and Related Persons................................. 60
Section 4.13 Change of Control................................................................ 61
Section 4.14 Provision of Financial Information............................................... 61
Section 4.15 Unrestricted Subsidiaries........................................................ 62
Section 4.16 Additional Amounts............................................................... 63
Section 4.17 Payments for Consent............................................................. 64
Section 4.18 Corporate Existence.............................................................. 64
Section 4.19 Money for Security Payments to Be Held in Trust.................................. 65
Section 4.20 Maintenance of Properties........................................................ 66
Section 4.21 Maintenance of Insurance......................................................... 66
ARTICLE 5. SUCCESSORS................................................................................ 66
Section 5.01 Merger, Consolidations and Certain Sales and Purchases of Assets................. 66
Section 5.02 Successor Corporation Substituted................................................ 67
ARTICLE 6. DEFAULTS AND REMEDIES..................................................................... 68
Section 6.01 Events of Default................................................................ 68
Section 6.02 Acceleration..................................................................... 69
Section 6.03 Other Remedies................................................................... 70
Section 6.04 Waiver of Past Defaults.......................................................... 70
Section 6.05 Control by Majority.............................................................. 71
Section 6.06 Limitation on Suits.............................................................. 71
Section 6.07 Rights of Holders of Notes to Receive Payment.................................... 71
Section 6.08 Collection Suit by Trustee....................................................... 71
Section 6.09 Restoration of Rights and Remedies............................................... 72
Section 6.10 Rights and Remedies Cumulative................................................... 72
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Section 6.11 Delay or Omission Not Waiver..................................................... 72
Section 6.12 Trustee May File Proofs of Claim................................................. 72
Section 6.13 Priorities....................................................................... 73
Section 6.14 Undertaking for Costs............................................................ 73
ARTICLE 7. TRUSTEE................................................................................... 73
Section 7.01 Duties of Trustee................................................................ 73
Section 7.02 Rights of Trustee................................................................ 75
Section 7.03 Individual Rights of Trustee..................................................... 76
Section 7.04 Trustee's Disclaimer............................................................. 76
Section 7.05 Notice of Defaults............................................................... 76
Section 7.06 Reports by Trustee to Holders of the Notes....................................... 76
Section 7.07 Compensation and Indemnity....................................................... 77
Section 7.08 Replacement of Trustee........................................................... 77
Section 7.09 Successor Trustee by Merger, etc................................................. 78
Section 7.10 Eligibility; Disqualification.................................................... 78
Section 7.11 Preferential Collection of Claims Against Company................................ 78
Section 7.12 Appointment of Co-Trustee........................................................ 79
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.................................................. 80
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......................... 80
Section 8.02 Legal Defeasance and Discharge................................................... 80
Section 8.03 Covenant Defeasance.............................................................. 80
Section 8.04 Conditions to Legal or Covenant Defeasance....................................... 81
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions......................................................... 82
Section 8.06 Repayment to Company............................................................. 83
Section 8.07 Reinstatement.................................................................... 83
ARTICLE 9. MODIFICATION AND WAIVER................................................................... 84
Section 9.01 Without Consent of Holders of Notes.............................................. 84
Section 9.02 With Consent of Holders of Notes................................................. 84
Section 9.03 Compliance with Trust Indenture Act.............................................. 86
Section 9.04 Revocation and Effect of Consents................................................ 86
Section 9.05 Notation on or Exchange of Notes................................................. 86
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Section 9.06 Trustee to Sign Amendments, etc.................................................. 86
ARTICLE 10. GUARANTEES................................................................................ 87
Section 10.01 Subsidiary Guarantee............................................................. 87
Section 10.02 Limitation on Subsidiary Guarantor Liability..................................... 89
Section 10.03 Execution and Delivery of Subsidiary Guarantee................................... 89
Section 10.04 Subsidiary Guarantors May Consolidate, etc., on Certain Terms.................... 90
Section 10.05 Releases From Subsidiary Guarantees.............................................. 91
Section 10.06 Subrogation...................................................................... 91
Section 10.07 Benefits Acknowledged............................................................ 91
ARTICLE 11. SATISFACTION AND DISCHARGE................................................................ 92
Section 11.01 Satisfaction and Discharge....................................................... 92
Section 11.02 Application of Trust Money....................................................... 92
ARTICLE 12. MISCELLANEOUS............................................................................. 92
Section 12.01 Trust Indenture Act Controls..................................................... 92
Section 12.02 Notices.......................................................................... 93
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.................... 94
Section 12.04 Certificate and Opinion as to Conditions Precedent............................... 94
Section 12.05 Statements Required in Certificate or Opinion.................................... 94
Section 12.06 Rules by Trustee and Agents...................................................... 95
Section 12.07 No Personal Liability of Directors, Officers, Trustees, Employees,
Shareholders, Partners and Principals............................................ 95
Section 12.08 Governing Law.................................................................... 95
Section 12.09 Waiver of Jury Trial............................................................. 95
Section 12.10 Force Majeure.................................................................... 95
Section 12.11 No Adverse Interpretation of Other Agreements.................................... 95
Section 12.12 Successors....................................................................... 96
Section 12.13 Agent for Service; Submission to Jurisdiction; Waiver of Immunities.............. 96
Section 12.14 Conversion of Currency........................................................... 96
Section 12.15 Currency Equivalent.............................................................. 97
Section 12.16 Severability..................................................................... 98
Section 12.17 Counterpart Originals............................................................ 98
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Section 12.18 Table of Contents, Headings, etc................................................. 98
Exhibit A Form of Global Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate From Acquiring Institutional
Accredited Investor
Exhibit E Form of Notation of Subsidiary Guarantor
Exhibit F Form of Supplemental Indenture to be Delivered by
Subsequent Subsidiary Guarantors
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