EXECUTION COPY
================================================================================
INCO LIMITED
TO
THE BANK OF NEW YORK,
Trustee
--------------
INDENTURE
Dated as of March 7, 2003
--------------
================================================================================
INCO LIMITED
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
ss.310(a)(1) ................................... 609
(a)(2) .................................... 609
(a)(3) .................................... Not Applicable
(a)(4) .................................... Not Applicable
(b) .................................... 608
610
ss.311(a) ................................... 613
(b) .................................... 613
ss.312(a) ................................... 701
702
(b) .................................... 702
(c) .................................... 702
ss.313(a) ................................... 703
(b) .................................... 703
(c) .................................... 703
(d) .................................... 703
ss.314(a) ................................... 704
(a)(4) .................................... 101
1004
(b) .................................... Not Applicable
(c)(1) .................................... 102
(c)(2) .................................... 102
(c)(3) .................................... Not Applicable
(d) .................................... Not Applicable
(e) .................................... 102
ss.315(a) ................................... 601
(b) .................................... 602
(c) .................................... 601
(d) .................................... 601
(e) .................................... 514
ss.316(a) ................................... 101
(a)(1)(A) .................................... 502
512
(a)(1)(B) .................................... 513
(a)(2) .................................... Not Applicable
(b) .................................... 508
(c) .................................... 104
ss.317(a)(1) ................................... 503
(a)(2) .................................... 504
(b) .................................... 1003
ss.318(a) ................................... 107
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
TABLE OF CONTENTS
----------
PAGE
----
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
Section 101. Definitions.......................................................1
Accredited Investor Letter..........................................2
Accrued Interest....................................................2
Act.................................................................2
Additional Trustee..................................................2
Affiliate...........................................................2
Agent Member........................................................2
Amount Payable at Maturity..........................................2
Applicable Procedures...............................................2
Attributable Debt...................................................2
Authenticating Agent................................................3
Board of Directors..................................................3
Board Resolution....................................................3
Business Day........................................................3
Cash Interest.......................................................3
Certificated Security...............................................3
Clearstream.........................................................3
Commission..........................................................3
Company.............................................................3
Company Request.....................................................3
Consolidated Net Tangible Assets....................................4
Corporate Trust Office..............................................4
corporation.........................................................4
Covenant Defeasance.................................................4
Defaulted Interest..................................................4
Defeasance..........................................................4
Depositary..........................................................4
Depository Securities Certification.................................4
DTC.................................................................4
Euroclear...........................................................4
Event of Default....................................................4
Exchange Act........................................................4
Exchange Offer......................................................4
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
Exchange Registration Statement.....................................4
Exchange Security...................................................4
Expiration Date.....................................................5
Funded Debt.........................................................5
GAAP................................................................5
Global Security.....................................................5
Holder..............................................................5
Indebtedness........................................................5
Indenture...........................................................5
Institutional Accredited Investor...................................5
Interest Payment Date...............................................5
Investment Company Act..............................................5
Issue Date..........................................................5
Issue Price.........................................................5
Maturity............................................................6
mortgage............................................................6
Notice of Default...................................................6
Officers' Certificate...............................................6
Opinion of Counsel..................................................6
Original Issue Discount.............................................6
Original Securities.................................................6
Other Additional Amounts............................................6
Outstanding.........................................................6
Owner Securities Certification......................................7
Paying Agent........................................................7
Person..............................................................7
Place of Payment....................................................7
Predecessor Security................................................7
Principal Property..................................................7
Purchase Agreement..................................................8
Qualified Institutional Buyer.......................................8
Record Date.........................................................8
Record Date Period..................................................8
Redemption Date.....................................................8
Redemption Price....................................................8
Registered Securities...............................................8
Registration Default................................................8
Registration Rights Agreement.......................................8
Regular Record Date.................................................8
Regulation S........................................................8
Regulation S Certificate............................................9
Regulation S Global Security........................................9
Regulation S Legend.................................................9
Regulation S Securities.............................................9
Relevant Taxing Jurisdiction........................................9
Repayment Date......................................................9
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-ii-
Repayment Price.....................................................9
Resale Registration Statement.......................................9
Responsible Officer.................................................9
Restricted Global Security..........................................9
Restricted Period...................................................9
Restricted Securities...............................................9
Restricted Securities Certificate...................................9
Restricted Securities Legend........................................9
Restricted Subsidiary..............................................10
Rule 144A..........................................................10
Rule 144A Securities...............................................10
Sale and Leaseback Transaction.....................................10
Securities.........................................................10
Securities Act.....................................................10
Securities Act Legend..............................................10
Securities Register................................................10
Special Interest...................................................10
Special Record Date................................................10
Specified Taxes....................................................10
Stated Maturity....................................................10
Subsidiary.........................................................10
Successor Corporation..............................................10
Successor Security.................................................10
Temporary Regulation S Global Security.............................11
Transferee Securities Certification................................11
Trust Indenture Act................................................11
Trustee............................................................11
U.S. Government Obligation.........................................11
Vice President.....................................................11
Section 102. Compliance Certificates and Opinions.............................11
Section 103. Form of Documents Delivered to Trustee...........................12
Section 104. Acts of Holders; Record Dates....................................12
Section 105. Notices, Etc., to Trustee and Company............................14
Section 106. Notice to Holders; Waiver........................................14
Section 107. Conflict with Trust Indenture Act................................15
Section 108. Effect of Headings and Table of Contents.........................15
Section 109. Successors and Assigns...........................................15
Section 110. Separability Clause..............................................15
Section 111. Benefits of Indenture............................................15
Section 112. Governing Law....................................................15
Section 113. Legal Holidays...................................................16
ARTICLE TWO SECURITY FORMS....................................................16
Section 201. Forms Generally..................................................16
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iii-
Section 202. Form of Face of Security.........................................19
Section 203. Form of Reverse of Security......................................21
Section 204. Form of Legend for Securities....................................25
Section 205. Form of Trustee's Certificate of Authentication..................28
ARTICLE THREE THE SECURITIES..................................................28
Section 301. Amount Unlimited; Issuable in Series.............................28
Section 302. Denominations....................................................31
Section 303. Execution, Authentication, Delivery and Dating...................31
Section 304. Temporary Securities.............................................33
Section 305. Registration, Registration of Transfer and Exchange; Certain
Transfers and Exchanges..........................................33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................41
Section 307. Payment of Interest; Interest Rights Preserved...................42
Section 308. Persons Deemed Owners............................................43
Section 309. Cancellation.....................................................44
Section 310. Computation of Interest..........................................44
Section 311. CUSIP Numbers....................................................44
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................44
Section 401. Satisfaction and Discharge of Indenture..........................44
Section 402. Application of Trust Money.......................................46
ARTICLE FIVE REMEDIES.........................................................46
Section 501. Events of Default................................................46
Section 502. Acceleration of Maturity; Rescission and Annulment...............48
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..49
Section 504. Trustee May File Proofs of Claim.................................49
Section 505. Trustee May Enforce Claims Without Possession of Securities......50
Section 506. Application of Money Collected...................................50
Section 507. Limitation on Suits..............................................50
Section 508. Unconditional Right of Holders to Receive Amount Payable at
Maturity and Cash Interest and to Convert........................51
Section 509. Restoration of Rights and Remedies...............................51
Section 510. Rights and Remedies Cumulative...................................52
Section 511. Delay or Omission Not Waiver.....................................52
Section 512. Control by Holders...............................................52
Section 513. Waiver of Past Defaults..........................................52
Section 514. Undertaking for Costs............................................53
Section 515. Waiver of Stay or Extension Laws.................................53
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iv-
ARTICLE SIX THE TRUSTEE.......................................................53
Section 601. Certain Duties and Responsibilities..............................53
Section 602. Notice of Defaults...............................................54
Section 603. Certain Rights of Trustee........................................55
Section 604. Not Responsible for Recitals or Issuance of Securities...........56
Section 605. May Hold Securities..............................................56
Section 606. Money Held in Trust..............................................56
Section 607. Compensation and Reimbursement...................................57
Section 608. Disqualification; Conflicting Interests..........................57
Section 609. Corporate Trustee Required; Eligibility..........................58
Section 610. Resignation and Removal; Appointment of Successor................58
Section 611. Acceptance of Appointment by Successor...........................59
Section 612. Merger, Conversion, Consolidation or Succession to Business......60
Section 613. Preferential Collection of Claims Against Company................60
Section 614. Appointment of Authenticating Agent..............................61
Section 615. Appointment of Additional Trustees...............................62
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............63
Section 701. Company to Furnish Trustee Names and Addresses of Holders........63
Section 702. Preservation of Information; Communications to Holders...........63
Section 703. Reports by Trustee...............................................63
Section 704. Reports by Company...............................................64
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............64
Section 801. Company May Consolidate, Etc., Only on Certain Terms.............64
Section 802. Taxing Jurisdiction..............................................65
Section 803. Successor Corporation Substituted................................66
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................67
Section 901. Supplemental Indentures Without Consent of Holders...............67
Section 902. Supplemental Indentures With Consent of Holders..................68
Section 903. Execution of Supplemental Indentures.............................69
Section 904. Effect of Supplemental Indentures................................69
Section 905. Conformity with Trust Indenture Act..............................70
Section 906. Reference in Securities to Supplemental Indentures...............70
Section 907. Notice of Supplemental Indentures................................70
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-v-
ARTICLE TEN COVENANTS.........................................................70
Section 1001. Payment of Amount Payable at Maturity, Cash Interest and Other
Amounts.........................................................70
Section 1002. Maintenance of Office or Agency.................................70
Section 1003. Money for Securities Payments to Be Held in Trust...............71
Section 1004. Corporate Existence.............................................72
Section 1005. Maintenance of Properties.......................................72
Section 1006. Payment of Taxes and Other Claims...............................72
Section 1007. Negative Pledge.................................................73
Section 1008. Limitation on Sale and Leaseback Transactions...................74
Section 1009. Statement by Officers as to Default.............................75
Section 1010. Waiver of Certain Covenants.....................................75
Section 1011. Calculation of Original Issue Discount..........................75
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................76
Section 1101. Applicability of Article........................................76
Section 1102. Election to Redeem; Notice to Trustee...........................76
Section 1103. Selection by Trustee of Securities to Be Redeemed...............76
Section 1104. Notice of Redemption............................................77
Section 1105. Deposit of Redemption Price.....................................78
Section 1106. Securities Payable on Redemption Date...........................78
Section 1107. Securities Redeemed in Part.....................................78
Section 1108. Purchase of Securities..........................................79
ARTICLE TWELVE PURCHASE OR REPAYMENT OF SECURITIES BY THE COMPANY AT OPTION
OF HOLDERS....................................................................79
Section 1201. Applicability of Article........................................79
Section 1202. Notice of Repayment Date........................................79
Section 1203. Deposit of Repayment Price......................................79
Section 1204. Securities Payable on Repayment Date............................80
Section 1205. Securities Repaid in Part.......................................80
ARTICLE THIRTEEN SINKING FUNDS................................................80
Section 1301. Applicability of Article........................................80
Section 1302. Satisfaction of Sinking Fund Payments with Securities...........81
Section 1303. Redemption of Securities for Sinking Fund.......................81
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-vi-
ARTICLE FOURTEEN CONCERNING THE HOLDERS.......................................81
Section 1401. Action by Holders...............................................81
Section 1402. Proof of Record of Holders' Meeting.............................82
Section 1403. Identification of Company-Owned Securities......................82
Section 1404. Revocation of Consents; Future Holders Bound....................82
ARTICLE FIFTEEN HOLDERS' MEETINGS.............................................82
Section 1501. Purposes of Meetings............................................82
Section 1502. Call of Meetings By Trustee.....................................83
Section 1503. Call of Meetings By Company or Holders..........................83
Section 1504. Qualifications for Voting.......................................83
Section 1505. Regulations.....................................................83
Section 1506. Voting..........................................................84
Section 1507. No Delay of Rights by Meeting...................................85
ARTICLE SIXTEEN DEFEASANCE AND COVENANT DEFEASANCE............................85
Section 1601. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance..........................................85
Section 1602. Defeasance and Discharge........................................85
Section 1603. Covenant Defeasance.............................................86
Section 1604. Conditions to Defeasance or Covenant Defeasance.................86
Section 1605. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.................................87
ARTICLE SEVENTEEN MISCELLANEOUS PROVISIONS....................................88
Section 1701. Consent to Jurisdiction and Service of Process..................88
Section 1702. Indenture and Securities Solely Corporate Obligations...........89
Section 1703. Execution in Counterparts.......................................89
TESTIMONIUM...................................................................86
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-vii-
Annex A-1 - Form of Transfer Certificate - Restricted Global Security to
Temporary Regulation S Global Security
Annex A-2 - Form of Transfer Certificate - Restricted Global Security to
Regulation S Global Security
Annex B - Form of Transfer Certificate - Temporary Regulation S Global
Security or Regulation S Global Security to Restricted Global
Security
Annex C-1 - Form of Certification to be Given by Holders of Beneficial
Interest in a Temporary Regulation S Global Security to
Euroclear or Clearstream
Annex C-2 - Form of Certification to be Given by Euroclear Bank S.A/N.V.,
as operator of the Euroclear System, or Clearstream Banking
Annex C-3 - Form of Certification to be Given by Transferee of Beneficial
Interest in a Temporary Regulation S Global Security After the
Restricted Period
Annex D-1 - Form of Transfer Certificate - Non-Global Restricted Security
to Restricted Global Security
Annex D-2 - Form of Certificate - Non-Global Restricted Security to
Regulation S Global Security or Temporary Regulation S Global
Security
Annex E - Institutional Accredited Investor Letter
Annex F - Form of Instruction for Exchange
-----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-viii-
INDENTURE, dated as of March 7, 2003, between INCO LIMITED, a
corporation duly organized and existing under the laws of Canada (herein called
the "Company"), having its principal office at 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0, and THE BANK OF NEW YORK, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Company's
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;
(6) All references to dollars and $ shall mean U.S. dollars
unless otherwise indicated; and
(7) when used with respect to any Security, the words
"convert", "converted" and "conversion" are intended to refer to the
right of the Holder or the Company to convert or exchange such Security
into or for securities or other property in accordance with such terms,
if any, as may hereafter be specified for such Security as contemplated
by Section 301, and these words are not intended to refer to any right
of the Holder or the Company to exchange such Security for other
Securities of the same series and like tenor pursuant to Section 304,
305, 306, 906, 1107 or 1205 or another similar provision of this
Indenture, unless the context otherwise requires; and references herein
to the terms of any Security that may be converted mean such terms as
may be specified for such Security as contemplated in Section 301.
"Accredited Investor Letter" has the meaning specified in Section 201.
"Accrued Interest" on any Security, as of a particular date, means
interest (other than Cash Interest) which has accrued, but remains unpaid, on
the Issue Price at the rate set forth on the face of such Security, computed in
accordance with the terms set forth in such Security.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Trustee" has the meaning specified in Section 615.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Amount Payable at Maturity" of a Security means the Amount Payable at
Maturity as set forth on the face of the Security.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable as lessee, 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 remaining term thereof (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to such
date at a rate per annum equivalent to the rate inherent in such lease (as
determined in good faith by the Company) compounded semi-annually. The net
amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
-2-
such period after excluding amounts required to be paid on account of or
attributable to operating costs, maintenance and repairs, insurance, taxes,
assessments, water and other utility rates and similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty in an
amount which is less than the total discounted net amount of rent required to be
paid from the later of the first date upon which such lease may be so terminated
or the date of the determination of such net amount of rent, as the case may be,
such net amount shall also include the amount of such penalty, but 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.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", (i) when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close and (ii) when used in any other context, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are authorized or obligated by law or executive order
to close.
"Cash Interest" on any Security, means interest at the rate set forth
on the face of such Security, computed in accordance with the terms set forth in
such Security, which pursuant to the terms of the Security is required to be
paid to the Holder prior to Maturity.
"Certificated Security" has the meaning set forth in Section 201.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg
(or any successor securities clearing agency).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman, any Vice Chairman,
its President, any Executive Vice President or any Vice President, together with
any one of its Treasurer, any Assistant Treasurer, its Secretary or any
Assistant Secretary, and delivered to the Trustee.
-3-
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (1) all current liabilities (excluding any portion thereof
constituting Funded Debt); and (2) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent consolidated balance sheet of the Company and
its Subsidiaries contained in the latest annual report to shareholders of the
Company and computed in accordance with GAAP.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 8 West, New York, New York 10286, Attention: Corporate
Trust Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"corporation" means a corporation, association, company, limited
liability company, business trust or other entity.
"Covenant Defeasance" has the meaning specified in Section 1603.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1602.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Depository Securities Certification" has the meaning specified in
Section 201.
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear Bank S.A./N.V., as operator of the
Euroclear System (or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the
Securities contained in Section 202.
"Exchange Registration Statement" has the meaning set forth in the form
of the Securities contained in Section 202.
"Exchange Security" means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise, and registered under the
-4-
Securities Act, and any Security with respect to which the next preceding
Predecessor Security of such Security was an Exchange Security.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" as applied to any Person, means all indebtedness for
money borrowed, created or assumed by such Person maturing after, or renewable
or extendable at the option of such Person beyond, 12 months from the date of
creation thereof.
"GAAP" means such accounting principles as are generally accepted in
Canada in respect of the date or period for any computation or statement
hereunder; provided, however, that in the event that the audited financial
statements of the Company set forth in its annual report to shareholders in
respect of any fiscal year shall be prepared in accordance with generally
accepted United States accounting principles, then "Generally Accepted
Accounting Principles" shall mean such principles for the purpose of any
computation or statement hereunder made during, or in respect of, such fiscal
year (or portion thereof).
"Global Security" means a Security that evidences all or part of the
Securities of any series, registered in the name of the Depositary, and bears
the legend set forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indebtedness" has the meaning specified in Section 1007.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of any
particular series of Securities established as contemplated by Section 301.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of Cash Interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issue Date" means, with respect to any series, the first date on which
the Securities of such series are initially issued.
"Issue Price" of any Security means, in connection with the original
issue of the Security, the initial price at which the Security is sold as set
forth on the face of the Security.
-5-
"Maturity", when used with respect to any Security, means the date on
which the Issue Price of and any Accrued Interest on such Security become due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, exercise of a Holder's option
to require the Company to purchase or repay the Security or otherwise.
"mortgage" has the meaning specified in Section 1007.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by any one of the
Chairman, any Vice Chairman, the President, any Executive Vice President or any
Vice President, together with any one of the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1005 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel who may be
internal legal counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount" of any Security means the difference between
the Issue Price and the Amount Payable at Maturity of the Security as set forth
on the face of the Security.
"Original Securities" means all Securities other than Exchange
Securities.
"Other Additional Amounts" has the meaning specified in Section 802.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1602;
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
-6-
(5) Securities as to which any property deliverable upon
conversion thereof has been delivered (or such delivery has been duly
provided for), or as to which any other particular conditions have been
satisfied, in each case as may be provided for such Securities as
contemplated in Section 301;
provided, however, that in determining whether the Holders of the requisite
Amount Payable at Maturity of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder (i) the
Amount Payable at Maturity shall refer to the amount that would be due and
payable at such date of determination if the Stated Maturity of the Securities
were accelerated to such date in accordance with Section 502, (ii) the Amount
Payable at Maturity of a Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent, determined on the Issue Date of
such Security, of the Amount Payable at Maturity of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
"Owner Securities Certification" has the meaning specified in Section
201.
"Paying Agent" means any Person authorized by the Company to pay the
Amount Payable at Maturity and Cash Interest and any other amounts due on, or in
respect of, the Securities of any series on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the Amount Payable at Maturity and Cash
Interest and any other amounts due on, or in respect of, the Securities of that
series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any
(a) mineral property, or
-7-
(b) manufacturing or processing plant, building,
structure or other facility, together with the land upon which it is erected and
fixtures comprising a part thereof,
whether owned as of the date hereof or hereafter acquired or constructed by the
Company or any Restricted Subsidiary, which is located in Canada or the United
States of America or its territories or possessions, the gross book value
(without deduction of any reserve for depreciation) of which, in each case, on
the date as of which the determination is being made, is an amount which exceeds
0.25% of Consolidated Net Tangible Assets, except any such plant, building,
structure or facility or any portion thereof (together with the land upon which
it is erected and fixtures comprising a part thereof) (i) acquired or
constructed principally for the purpose of controlling or abating atmospheric
pollutants or contaminants, or water, noise, odor or other pollution or (ii)
which the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries considered as one enterprise.
"Purchase Agreement" means, with respect to a series of Securities, the
agreement between the Company, on the one hand, and the initial purchasers of
such series of Securities named therein as such, on the other hand, setting
forth the terms and conditions for the initial offer and sale of such
Securities.
"Qualified Institutional Buyer" means a "qualified institutional buyer"
as defined in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means, with respect to Securities of
any series, the Registration Rights Agreement between the Company and the
initial purchasers named under the Purchase Agreement in respect of the
Securities of such series.
"Regular Record Date" for the Cash Interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
-8-
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form set
forth in Section 204 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities offered and sold
pursuant to Regulation S. Such term includes the Regulation S Global Security.
"Relevant Taxing Jurisdiction" has the meaning specified in Section
802.
"Repayment Date", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Company to
purchase or repay the Securities held by such Holder, means the date, if any,
fixed for such purchase or repayment pursuant to this Indenture.
"Repayment Price", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Company to
purchase or repay the Securities held by such Holder, means the price, if any,
at which such purchase or repayment is to occur pursuant to this Indenture.
"Resale Registration Statement" has the meaning set forth in the form
of the Securities contained in Section 202.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president who shall have direct
responsibility for the administration of this Indenture, any assistant
secretary, any assistant treasurer or any trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Period" for a series means the period of 40 consecutive
days beginning on and including the later of (i) the day on which Securities of
that series are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the original issuance date of
the Securities of that series.
"Restricted Securities" means all Securities offered and sold pursuant
to Rule 144A or to Institutional Accredited Investors in a transaction that is
not registered under the Securities Act. Such term includes the Restricted
Global Security and Certificated Securities.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms set forth in Section 204 to be placed upon each
Restricted Security.
-9-
"Restricted Subsidiary" means (i) any Subsidiary (x) substantially all
of the property of which is located, or substantially all of the business of
which is carried on, within Canada or the United States of America or its
territories or possessions and (y) which owns or leases a Principal Property;
and (ii) any Subsidiary engaged primarily in the business of owning or holding
securities of Restricted Subsidiaries; provided, however, that the term
"Restricted Subsidiary" shall not include any Subsidiary the principal assets of
which are stock or indebtedness of corporations which conduct substantially all
of their business outside Canada and the United States of America or its
territories or possessions.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities of a series purchased upon
their original issuance by the initial purchasers from the Company for resale
pursuant to Rule 144A.
"Sale and Leaseback Transaction" has the meaning specified in Section
1008.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Interest" has the meaning set forth in Section 202.
"Special Record Date", for the payment of any Defaulted Interest, means
a date fixed by the Trustee pursuant to Section 307.
"Specified Taxes" has the meaning specified in Section 802.
"Stated Maturity", when used with respect to any Security, means the
date specified in the Security as the fixed date on which the Amount Payable at
Maturity of such Security or an installment of Cash Interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Successor Corporation" has the meaning specified in Section 801.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and,
-10-
for the purposes of this definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Temporary Regulation S Global Security" has the meaning specified in
Section 201.
"Transferee Securities Certification" has the meaning specified in
Section 305(b).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1604.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
-11-
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
-12-
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of any Security shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite Amount Payable at Maturity of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed
to prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite Amount
Payable at Maturity of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite Amount Payable at Maturity of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render
-13-
ineffective any action taken by Holders of the requisite Amount Payable at
Maturity of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the Amount Payable at Maturity of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Amount Payable at Maturity.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing (which may be by facsimile) to or with the Trustee at
its Corporate Trust Offices, Attention: Corporate Trust Administration,
00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid or delivered by an
overnight delivery service, to each Holder affected by such event, at his
address as it appears in the Securities Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case
-14-
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee, which
approval shall not be unreasonably withheld, shall constitute a sufficient
notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-15-
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Security, or on any date on which a Holder has a
right to convert his Security, shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of the Amount
Payable at Maturity or Cash Interest or any other amounts due on, or in respect
of, the Securities, or conversion of such Security need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity; provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, or on such date for
conversion, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
(a) The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other xxxx of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
In certain cases described elsewhere herein, the legends set forth in
Section 204 may be omitted from Securities issued hereunder.
(b) (i) Securities of a series offered and sold in their initial
distribution in reliance on Regulation S shall be initially issued in the form
of one or more temporary Global Securities, in fully registered form without
interest coupons, substantially in the form of Security set forth in Sections
202 and 203, as the case may be, with such applicable legends as are provided
for in Section 202 and Section 204, as the case may be. Such Global Securities
shall be registered in the name of the Depositary or its nominee, and deposited
with the Trustee, at its New York
-16-
offices, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts at the Depositary of the depositories for Euroclear and for
Clearstream, for credit to the respective accounts of owners of beneficial
interests in such Securities or to such other accounts as they may direct. Until
such time as the Restricted Period in respect of securities of a series shall
have terminated, such temporary Global Securities shall be referred to herein as
"Temporary Regulation S Global Securities". On or after the termination of the
Restricted Period, interests in any Temporary Regulation S Global Security of a
series shall be exchangeable for corresponding interests in an unrestricted
Regulation S Global Security of the same series (each a "Regulation S Global
Security") in fully registered form without interest coupons, substantially in
the form set forth in Sections 202 and 203, with such applicable legends as are
provided for in Section 202 and Section 204 and in accordance with the
immediately following paragraph.
(ii) Interests in a Temporary Regulation S Global Security of a series
may be exchanged for interests in a Regulation S Global Security of the same
series representing the same underlying indebtedness only on or after the
termination of the Restricted Period with respect to such securities after
delivery by a beneficial owner of an interest therein to Euroclear or
Clearstream of a written certification (an "Owner Securities Certification")
substantially in the form of Annex C-1 hereto, and upon delivery by Euroclear or
Clearstream to the Trustee of a written certification (a "Depository Securities
Certification") substantially in the form attached hereto as Annex C-2. Upon
receipt of such certification, the Trustee shall exchange the portion of the
Temporary Regulation S Global Security covered by such certification for
interests in a Regulation S Global Security representing the same underlying
indebtedness.
Upon:
(A) the expiration of the Restricted Period,
(B) receipt by Euroclear or Clearstream, as the case may be, and
the Paying Agent of the certificates described in the
preceding paragraph,
(C) receipt by the Depositary of
(i) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing
the Depositary to credit or cause to be credited to a
specified Agent Member's account a beneficial
interest in the Regulation S Global Security in an
Amount Payable at Maturity equal to that of the
beneficial interest in the Temporary Regulation S
Global Security for which the necessary certificates
have been delivered, and
(ii) a written order given in accordance with the
Applicable Procedures containing information
regarding the account of the Agent Member, and the
Euroclear or Clearstream account for which such Agent
Member's account is held, to be credited with, and
the account of the Agent Member to be debited for,
such beneficial interest, and
(D) receipt by the Trustee of notification from the Depositary
of the transactions described in (C) above,
the Trustee, as Security Registrar, shall instruct the Depositary to reduce the
Amount Payable at Maturity of the Temporary Regulation S Global Security and to
increase the Amount Payable at Maturity of the Regulation S Global Security, by
the Amount Payable at Maturity of the beneficial interest in such Temporary
Regulation S Global Security to be so transferred, and to
-17-
credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security having an
Amount Payable at Maturity equal to the amount by which the Amount Payable at
Maturity of the Temporary Regulation S Global Security was reduced upon such
transfer. The aggregate Amount Payable at Maturity of a Regulation S Global
Security of a series may be increased or decreased from time to time by
adjustments made on the records of the Trustee, as custodian for the Depositary,
in connection with a corresponding decrease or increase in the aggregate Amount
Payable at Maturity, as hereinafter provided.
(iii) Until such time as the Restricted Period shall have terminated,
investors may hold interests in the Regulation S Temporary Global Security only
through Euroclear and Clearstream, unless delivery of such beneficial interest
upon transfer shall be made through a Restricted Global Security in accordance
with the certification requirements discussed below in Section 305(b)(v).
(c) Securities of a series offered and sold in their initial
distribution in reliance on Rule 144A shall be issued in the form of one or more
Global Securities (each, a "Restricted Global Security"), in definitive, fully
registered form without interest coupons, substantially in the form of Security
set forth in Sections 202 and 203 with such applicable legends as are provided
for in Section 202 and Section 204, except as otherwise permitted herein. Such
Global Securities shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter provided
for credit to the respective accounts of owners of beneficial interests in such
Securities or to such other accounts as they may direct. The aggregate Amount
Payable at Maturity of a Restricted Global Security of a series may be increased
or decreased from time to time by adjustments made on the records of the
Trustee, as custodian for the Depositary, in connection with a corresponding
decrease or increase in the aggregate Amount Payable at Maturity, as hereinafter
provided.
(d) Securities that are to be offered and sold to Institutional
Accredited Investors that are not Qualified Institutional Buyers, sold in each
case to an Institutional Accredited Investor that has executed and delivered to
the Trustee, as Security Registrar, a letter substantially in the form of Annex
E hereto (an "Accredited Investor Letter"), shall be issued in definitive, fully
registered form without interest coupons, substantially in the form set forth in
Section 202 and Section 203, with such applicable legends as are provided for in
Section 202 and Section 204. The Securities sold to Institutional Accredited
Investors in accordance with the foregoing sentence (individually, a
"Certificated Security" and collectively, the "Certificated Securities") shall
not be issued in the form of Global Securities. Certificated Securities acquired
from the initial purchasers named in the Purchase Agreement in respect of the
Securities of such series may be transferred initially only to Qualified
Institutional Buyers in accordance with Rule 144A, to a transferee who will
acquire such security in reliance on Regulation S or pursuant to Rule 144 under
the Securities Act, if available, and exchanged for interests in Global
Securities pursuant to Section 305(b)(vi)(1). Certificated Securities shall be
duly executed by the Company and authenticated by the Trustee as provided
herein, and shall be registered in the name of the Institutional Accredited
Investor purchasing such Security and shall bear the Restricted Securities
Legend.
-18-
Section 202. Form of Face of Security.
[Insert any legend as required by Section 204]
[Insert any legend required by the Internal Revenue Code and the Income
Tax Act (Canada) and the regulations thereunder.]
INCO LIMITED
[Insert title of Securities]
No. ......... CUSIP No.............
Issue Date: ......... Stated Maturity:.............
Issue Price: :........ (for each $__ Amount Payable at Maturity)
Original Issue Discount (for U.S. tax purposes):.............
(for each $__ Amount Payable at Maturity)
Inco Limited, a corporation duly organized and existing under the laws
of Canada (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ..............................................., or
registered assigns, the sum of $__________ Dollars on
........................................................., [If this Security is
to bear Cash Interest prior to Maturity insert--and to pay Cash Interest on the
Issue Price from ................ or from the most recent Interest Payment Date
to which Cash Interest has been paid or as duly provided for, semi-annually on
............. and ............ in each year, commencing ........., and at the
Stated Maturity thereof, at the rate of ....% per annum, until the Amount
Payable at Maturity is paid or made available for payment [If applicable,
insert:, and (to the extent that the payment of such interest shall be legally
enforceable), at the rate of ___% per annum on any overdue Amount Payable at
Maturity and on any overdue installment of Cash Interest.] [from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand], [If Original Securities are not also
Registered Securities, then insert, as appropriate, --provided, that if (i) the
Company has not filed a registration statement (the "Exchange Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
to register a security substantially identical to this Security (except that
such Security shall not contain terms with respect to the Special Interest
payments described below or transfer restrictions) pursuant to an exchange offer
(the "Exchange Offer") within ___ days after the Issue Date of this Security
(or, if required pursuant to the Registration Rights Agreement, a registration
statement registering this Security for resale (a "Resale Registration
Statement") within ___ days after the later of the Issue Date of this Security
or the date of the change in applicable law or interpretations of the staff of
the Securities and Exchange Commission, as set forth in the Registration Rights
Agreement), or (ii) the Exchange Registration Statement or, if applicable, the
Resale Registration Statement, is not declared effective on or prior to the date
that is the later of the date ___ days after the Issue Date of this Security or,
in the case of the Resale Registration Statement, the date of the change in
applicable law or interpretations of the staff of the Securities and Exchange
Commission, as set forth in the Registration Rights Agreement, or (iii) the
Exchange Offer has not been completed on or prior to the date that is ___ days
after the Issue Date of this Security, unless applicable law or interpretations
of the staff of the Securities and Exchange Commission do not permit the Company
to effect the Exchange Offer, in each case of clause (i), (ii) or (iii), upon
the terms and conditions set forth in the Registration Rights Agreement (each
such event referred to in clause (i), (ii) or (iii), a "Registration Default"),
to the extent required pursuant
-19-
thereto, then Special Interest shall accrue (in addition to the stated interest
on the Securities) at an additional annual rate of ___% immediately following
the Registration Default until the Registration Default is cured by meeting the
applicable requirement in clause (i), (ii) or (iii), as the case may be.
Notwithstanding the existence of more than one Registration Default, in no event
shall Special Interest accrue at an annual rate in excess of ___%. Interest
accruing as a result of a Registration Default is referred to herein as "Special
Interest".
Whenever in this Security or in the Indenture there is a reference, in
any context, to the payment of the Amount Payable at Maturity or Cash Interest
or any other amounts due on, or in respect of, any Security, such mention shall
be deemed to include mention of the payment of Special Interest (if applicable)
payable as described in the preceding paragraph to the extent that, in such
context, Special Interest is, was or would be payable in respect of such
Security and express mention of the payment of Special Interest (if applicable)
in any provisions of this Security shall not be construed as excluding Special
Interest in those provisions of this Security where such express mention is not
made.
Any accrued and unpaid Cash Interest (including Special Interest) on
this Security upon the issuance of an Exchange Security (as defined in the
Indenture) in exchange for this Security shall cease to be payable to the Holder
hereof but such accrued and unpaid Cash Interest (including Special Interest)
shall be payable on the next Interest Payment Date for such Exchange Security to
the Holder thereof on the related Regular Record Date.]
[If the Security is to bear interest prior to Maturity, insert - The
Cash Interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such Cash
Interest, which shall be the ....... or ....... (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such Cash
Interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear Cash Interest prior to Maturity, insert
-- The Issue Price of this Security shall not bear Cash Interest except in the
case of a default in payment of the Issue Price plus Accrued Interest upon
acceleration, upon redemption, upon repayment at the option of the Holder or at
Stated Maturity and in such case the overdue Issue Price of and Accrued Interest
on this Security shall bear interest at the rate of ....% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of
such Issue Price plus Accrued Interest has been made or duly provided for.
Interest on any overdue Issue Price plus Accrued Interest shall be payable on
demand. [Any such interest on any overdue Issue Price plus Accrued Interest that
is not paid on demand shall bear interest at the rate of ....% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for
-20-
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]]
Payment of the Amount Payable at Maturity, [Cash Interest] [and any
other amounts due on, or in respect of, this Security][describe other amounts
due] will be made at the office or agency of the Company maintained for that
purpose in ............, in such coin or currency of the [United States of
America] [other country] as at the time of payment is legal tender for payment
of public and private debts [if other form of payment - insert description of
form of payment] [if applicable, insert--; provided, however, that at the option
of the Company payment of interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Securities Register, or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto as specified in the Securities Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
[Insert a reference to any option of the Holders to require purchase or
repayment by the Company.]
[Insert a reference to any requirement for an adjustment to the Cash
Interest rate.]
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company, has caused this instrument to be duly
executed.
Dated:
INCO LIMITED
By____________________________
By____________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 7, 2003 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
-21-
designated on the face hereof[, limited in aggregate Amount Payable at Maturity
to $____________.]
[If applicable, insert-- At any time [on or after .........., 20..],
[or such later date as the Company may by notice in writing to the Holders
stipulate], [if applicable, insert-- or on ........... in any year commencing
with the year ...... and ending with the year ...... through operation of the
sinking fund for this series at a Redemption Price equal to Issue Price plus
Accrued Interest to the Redemption Date,] the Securities of this series are
subject to redemption at the option of the Company as provided in the Indenture,
in whole or in part, at a "Redemption Price" equal to the Issue Price plus
Accrued Interest to the Redemption Date. In the event of redemption, the Company
will also pay the Holder, in addition to the Redemption Price, an amount equal
to the accrued and unpaid Cash Interest to the Redemption Date.
In the event of a redemption of less than all of the Securities of this
series, the Company shall not be required (a) to register the transfer or
exchange of the Securities of this series for a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for such redemption or (b) to register the
transfer or exchange of any of the Securities of this series, or portion
thereof, called for redemption.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the Amount Payable at Maturity, and (2)] at
any time [on or after .........., 20..], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the Amount Payable at Maturity): If redeemed [on or before ...............,
....%, and if redeemed] during the 12-month period beginning ............. of the
years indicated,
Redemption Redemption
Year Price Year Price
---------------- --------------------- ------------------ -------------------
and thereafter at a Redemption Price equal to......% of the Amount
Payable at Maturity, together in the case of any such redemption [if applicable,
insert -- (whether through operation of the sinking fund or otherwise)] with
accrued Cash Interest to the Redemption Date, but Cash Interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.] [(if applicable, insert-- the
securities of this series are also redeemable as set forth hereinafter.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the
-00-
Xxxxxx Xxxxxxx at Maturity) set forth in the table below, and (2) at any time
[on or after ............], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the Amount Payable at
Maturity) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price For Redemption Redemption Price For Redemption
Through Operation of the Sinking Otherwise Than Through Operation
Year Fund of the Sinking Fund
---------- -------------------------------- --------------------------------
and thereafter at a Redemption Price equal to .....% of the Amount Payable at
Maturity, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued Cash Interest to the Redemption
Date, but Cash Interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert-- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by clause (2) of the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than .....% per annum.]
[The sinking fund for this series provides for the redemption on
............. in each year beginning with the year ....... and ending with the
year ...... of [not less than] $.......... [("mandatory sinking fund") and not
more than $.........] aggregate Amount Payable at Maturity of Securities of this
series. [Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the inverse order in which they become due.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert reference to any other right of the Company to
redeem a Security of this Series.]
[The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security or] [certain restrictive covenants and
Events of Default with respect to this Security] [, in each case upon compliance
by the Company with certain conditions set forth therein].]
-23-
[If applicable, insert provisions with respect to the option of Holders
to require purchase or repayment of Securities of this series by the Company at
the option of the Holder and the issuance of Securities in lieu of Securities
purchased or repaid by the Company at the option of the Holder.]
[If applicable, insert provisions requiring an adjustment to the Cash
Interest rate in certain circumstances.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount equal to the Issue Price of the Securities of
this series together with Accrued Interest may be declared due and payable[.]
[in the manner and with the effect provided in the Indenture.] Such amount shall
be equal to [insert formula for determining the amount]. Upon payment (i) of the
amount so declared due and payable and (ii) of interest on any such amounts that
are overdue (including overdue Cash Interest) (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of all amounts due in respect of
Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3 % of the Amount Payable at Maturity of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages of the
Amount Payable at Maturity of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% of the Amount
Payable at Maturity of the Securities of this series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority of the Amount Payable at Maturity of Securities of this series at the
time Outstanding a direction inconsistent with such request, and the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security for the enforcement of any
payment of the Amount Payable at Maturity or Cash Interest or any other amounts
due on, or in respect of, this Security on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Amount Payable at Maturity and Cash
Interest or any other amounts due on, or in respect of,
-24-
this Security at the times, place and rate, and in the coin or currency [or such
other form of payment], herein prescribed.
For disclosure purposes under the Interest Act (Canada), whenever in
the Securities of this series or the Indenture interest at a specified rate is
to be calculated on the basis of a period less than a calendar year, the yearly
rate of interest to which such rate is equivalent is such rate multiplied by the
actual number of days in the relevant calendar year and divided by the number of
days in such period.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the Amount Payable at
Maturity and Cash Interest and any other amounts due on, or in respect of, the
Securities are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate Amount Payable at Maturity,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 Amount Payable at Maturity and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate Amount Payable at Maturity of Securities of this series and of
like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of
the Indenture relating to Global Securities, including the limitations in
Section 305 thereof on transfers and exchanges of Global Securities.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Security that is a Global Security, a
Restricted Security or a Regulation S Security authenticated and delivered
hereunder shall bear one or more of the appropriate legends in substantially the
following forms, as appropriate:
-25-
[IF THE SECURITY IS A RESTRICTED SECURITY OR A TEMPORARY REGULATION S SECURITY,
THEN INSERT -
THIS SECURITY [AND THE COMMON SHARES AND ASSOCIATED COMMON SHARE PURCHASE RIGHTS
ISSUABLE UPON CONVERSION, REDEMPTION, PURCHASE OR PAYMENT OF THIS SECURITY] HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY [NOR SUCH COMMON SHARES AND ASSOCIATED COMMON SHARE
PURCHASE RIGHTS] MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (1) (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) AS LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR
904 OF REGULATION S, (E) IN THE CASE OF AN INITIAL HOLDER THAT ACQUIRED THIS
SECURITY IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PURSUANT TO RULE 144A OR RULE 904 THEREUNDER AND IN THE CASE OF
SUBSEQUENT HOLDERS, IN AN AGGREGATE ISSUE PRICE OF NOT LESS THAN $250,000 INSIDE
THE UNITED STATES TO "AN INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
THAT, PRIOR TO THE TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFERS
OF THE SECURITIES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE),
(F) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF AVAILABLE) OR (G) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (2) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.]
[INCLUDE IF SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY - THIS
SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 305(b) OF THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
TEMPORARY GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL
SECURITY. NO EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL SECURITY MAY BE
MADE FOR AN INTEREST IN THE REGULATION S GLOBAL SECURITY EXCEPT ON OR AFTER THE
TERMINATION OF THE DISTRIBUTION
-26-
COMPLIANCE PERIOD AND UPON DELIVERY OF THE OWNER SECURITIES CERTIFICATION AND
THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO SUCH INTEREST IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE.]
[IF THE SECURITY IS A REGULATION S SECURITY, THEN INSERT - THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON,
UNLESS THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND DTC IS TO BE THE DEPOSITARY
THEREFOR, THEN INSERT - UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF CERTIFICATED SECURITIES, THEN INSERT - THIS SECURITY WILL NOT BE
ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE
HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD A MINIMUM OF
AGGREGATE BENEFICIAL INTEREST IN SUCH GLOBAL SECURITY OF AT LEAST TWO HUNDRED
AND FIFTY THOUSAND DOLLARS ($250,000).]
-27-
Section 205. Form of Trustee's Certificate of Authentication.
Subject to Section 614, each of the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: The Bank of New York,
As Trustee
By........................
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate Amount Payable at Maturity of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other securities);
(2) any limit upon the aggregate Amount Payable at Maturity of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1205 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any Cash Interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such Cash Interest;
(4) the date on which the Amount Payable at Maturity of any
Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable) at which
the Securities of the series shall bear interest, if any, the date or
dates from which any such interest shall
-28-
accrue, the Interest Payment Dates on which any such Cash Interest
shall be payable and the Regular Record Date for the Cash Interest
payable on any Interest Payment Date;
(6) the place or places where the Amount Payable at Maturity and
Cash Interest and any other amounts due on, or in respect of, any
Securities of the series shall be payable, the place or places where
the Securities of such series may be presented for registration of
transfer or exchange, any restrictions that may be applicable to any
such transfer or exchange in addition to or in lieu of those set forth
herein, and the place or places where notices and demands to or upon
the Company in respect of the Securities of such series may be made;
(7) the period or periods if any, within which, the price or
prices at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates
on which, the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any such Securities of the
series shall be issuable;
(10) if the Amount Payable at Maturity or Cash Interest or any
other amounts due on, or in respect of, any Securities of the series
may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America,
the currency, currencies, composite currency, composite currencies or
currency units in which the Amount Payable at Maturity or Cash Interest
or any other amounts due on, or in respect of, any Securities of the
series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any
purpose, including for the purposes of making payment in the currency
of the United States of America and applying the definition of
"Outstanding" in Section 101;
(12) if other than cash, the form of payment in which the Amount
Payable at Maturity or Cash Interest or any other amounts due on, or in
respect of, any Securities of the series shall be payable and the
manner of determining the equivalent value thereof in the currency of
the United States of America for any purpose, including for the
purposes of making payment in the currency of the United States of
America and applying the definition of "Outstanding" in section 101;
(13) if the Amount Payable at Maturity or Cash Interest or any
other amounts due on, or in respect of, any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in
one or more currencies, composite currencies or currency units other
than that or those in which such Securities are stated to be payable,
the currency, currencies, composite currency, composite currencies or
currency units in
-29-
which the Amount Payable at Maturity or Cash Interest or any other
amounts due on, or in respect of, such Securities as to which such
election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(14) if other than the entire Issue Price and Accrued Interest
thereof, the portion of the Issue Price of and Accrued Interest on any
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
(15) if the Amount Payable at Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to
the Stated Maturity, the amount which shall be deemed to be the Amount
Payable at Maturity of such Securities as of any such date for any
purpose thereunder or hereunder, including the Amount Payable at
Maturity thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the Amount Payable at Maturity
shall be determined);
(16) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1602 or
Section 1603 or both such Sections, any provisions to permit a pledge
of obligations other than U.S. Government Obligations (or the
establishment of other arrangements) to satisfy the requirements of
Section 1604(1) for defeasance of such Securities and, if other than by
a Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204, any addition to, elimination of or other change
in the circumstances set forth in Clause (2) of the last paragraph of
Section 305(a) in which any such Global Security may be exchanged in
whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or
a nominee thereof and any other provisions governing exchanges or
transfers of any such Global Security;
(18) any addition to, elimination of or other change in the Events
of Default which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such Securities
to declare the Issue Price and Accrued Interest thereof due and payable
pursuant to Section 502;
(19) any addition to, elimination of or other change in the
covenants set forth in Article Ten which applies to Securities of the
series;
(20) any provisions necessary to permit or facilitate the
issuance, payment or conversion of any Securities of the series that
may be converted into securities or other
-30-
property other than Securities of the same series and of like tenor,
whether in addition to, or in lieu of, any payment of the Amount
Payable at Maturity or other amount and whether at the option of the
Company or otherwise, and the terms and conditions upon which such
conversion or exchange shall be effected (including, without
limitation, the initial conversion or exchange price or rate, the
conversion or exchange period and any other provisions in addition to
or in lieu of those set forth in this Indenture relative to such
obligations); and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at the
same time and, unless otherwise provided, a series may be reopened for
additional issuance of Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 Amount Payable at Maturity and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any one of
its Chairman, Vice Chairman, President, any Executive Vice President or any Vice
President, together with any one of the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If not
all the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company
-31-
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining terms of particular Securities of such series
such as interest rate, stated maturity, date of issuance and date from which
interest shall accrue. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will materially and adversely affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all
-32-
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities, which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like Amount
Payable at Maturity of definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate Amount Payable at
Maturity. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange; Certain
Transfers and Exchanges.
(a) Registration, Registration of Transfer and Exchange Generally. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Securities Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate Amount
Payable at Maturity and tenor.
Subject to this Section 305(a) and to Section 305(b), at the option of
the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate Amount
Payable at Maturity and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
-33-
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the
Securities, no Global Security of any series may be exchanged in whole
or in part for Securities of that series registered, and no transfer of
a Global Security of a series in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) the Depositary (i) has
notified the Company that it is unwilling or unable to continue as
Depositary for the Global Security and a successor Depositary has not
been appointed by the Company within 90 days of receipt by the Company
of such notification or (ii) has ceased to be a clearing agency
registered under the Exchange Act and a successor Depositary has not
been appointed by the Company within 90 days after the Company became
aware of such cessation, (B) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Certificated
Securities, (C) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (D) there shall exist
such circumstances, if any, in addition to or in lieu of the foregoing
as have been specified for this purpose as contemplated by Section 301.
Any Global Security of a series exchanged pursuant to clause (A) above
shall be so exchanged in whole and not in part and any Global Security
of a series exchanged pursuant to clause (B), (C) or (D) above may be
exchanged in whole or from time to time in part as directed by the
Company or the Trustee.
-34-
(3) Securities issued in exchange for a Global Security of a
series or any portion thereof pursuant to clause (2) above shall be
issued in definitive, fully registered form without interest coupons,
shall have an aggregate Amount Payable at Maturity equal to that of
such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required
hereunder. Any Global Security of a series to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Security
Registrar. With regard to any Global Security of a series to be
exchanged in part, either such Global Security shall be so surrendered
for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the
Amount Payable at Maturity thereof shall be reduced by an amount equal
to the portion thereof to be so exchanged by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender
or adjustment, the Trustee shall authenticate and make available for
delivery a Security of such series issuable on such exchange to or upon
the written order of the Depositary or an authorized representative
thereof.
(4) In the event of the occurrence of any of the events specified
in clause (2) above, the Company shall promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive,
registered form without interest coupons.
(5) No Agent Members nor any other Persons on whose behalf Agent
Members may act (including Euroclear and Clearstream and account
holders and participants therein and any holder or owner of any
beneficial interest in any Global Security) shall have any rights under
the Indenture with respect to any Global Security, or under any Global
Security, and the Depositary or such nominee, as the case may be, may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons governing the
exercise of the rights of a holder of any Security. Neither the
Company, the Trustee nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Depositary or by
any Agent Member or any other Person that acquires a beneficial
interest in a Security. Neither the Trustee nor the Depositary shall
have any duty or obligation to monitor compliance with any restrictions
on transfer with respect to the transfer of any interest in the
Securities (including transfers between Agent Members or any such other
Persons that acquire a beneficial interest in a Security) other than to
require delivery of any documents or certificates specifically required
by this Indenture.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) Limitation on Transfers of a Global Security. A Global
Security of a series may not be transferred, in whole or in part, to
any Person other than DTC or a
-34-
nominee thereof, and no such transfer to any such other Person may be
registered; provided that this clause (i) shall not prohibit any
transfer of a Security of a series that is issued in exchange for a
Global Security of that series but is not itself a Global Security
pursuant to Section 305(a). No transfer of a Security of a series to
any Person shall be effective under this Indenture or the Securities
unless and until such Security has been registered in the name of such
Person. Nothing in this Section 305(b)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security
effected in accordance with the other provisions of this Section
305(b).
(ii) Temporary Regulation S Global Security. If the owner of a
beneficial interest in a Temporary Regulation S Global Security of a
series wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
such Temporary Regulation S Global Security, such transfer may be
effected, subject to the rules and procedures of the Depositary,
Euroclear and Clearstream, in each case to the extent applicable and as
in effect from time to time (the "Applicable Procedures"), only in
accordance with this Section 305(b)(ii). Upon delivery (A) by a
beneficial owner of an interest in a Temporary Regulation S Global
Security to Euroclear or Clearstream, as the case may be, of an Owner
Securities Certification substantially in the form of Annex C-1 hereto,
(B) by the transferee of such beneficial interest in the Temporary
Regulation S Global Security to Euroclear or Clearstream, as the case
may be, of a written certification (a "Transferee Securities
Certification") substantially in the form of Annex C-3 hereto and (C)
by Euroclear or Clearstream, as the case may be, to the Trustee, as
Security Registrar, of a Depository Securities Certification
substantially in the form of Annex C-2 hereto, the Trustee may direct
either Euroclear or Clearstream, as the case may be, to reflect on its
records the transfer of a beneficial interest in the Temporary
Regulation S Global Security from the beneficial owner providing the
Owner Securities Certification to the Person providing the Transferee
Securities Certification.
(iii) Restricted Global Security to Temporary Regulation S Global
Security. If the holder of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Temporary Regulation S Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in
accordance with the provisions of this Section 305(b)(iii). Upon
receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from a
Agent Member directing the Trustee to credit or cause to be credited to
a specified Agent Member's account a beneficial interest in the
Temporary Regulation S Global Security in an Amount Payable at Maturity
equal to that of the beneficial interest in the Restricted Global
Security to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Agent Member (and the Euroclear or Clearstream account,
as the case may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest and (C) a
certificate in substantially the form set forth in Annex A-1 given by
the holder of such beneficial interest, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the Amount Payable
at Maturity of the applicable Restricted Global Security, and to
increase the Amount Payable at Maturity of the Temporary Regulation S
Global Security, by the Amount Payable at Maturity of the beneficial
interest in the Restricted Global Security to be so transferred, and to
credit or cause to be credited to the account of
-36-
the Person specified in such instructions (which shall be the Agent
Member for Euroclear or Clearstream or both, as the case may be) a
beneficial interest in the Temporary Regulation S Global Security
having an Amount Payable at Maturity equal to the amount by which the
Amount Payable at Maturity of the Restricted Global Security was
reduced upon such transfer.
(iv) Restricted Global Security to Regulation S Global Security.
If the holder of a beneficial interest in a Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section
305(b)(iv). Upon receipt by the Trustee, as Security Registrar, of (A)
written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in
a Regulation S Global Security in an Amount Payable at Maturity equal
to that of the beneficial interest in the Restricted Global Security to
be so transferred, (B) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Agent Member (and, if applicable, the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of
the Agent Member to be debited for, such beneficial interest and (C) a
certificate in substantially the form set forth in Annex A-2 given by
the holder of such beneficial interest, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the Amount Payable
at Maturity of the applicable Restricted Global Security, and to
increase the Amount Payable at Maturity of the Regulation S Global
Security, by the Amount Payable at Maturity of the beneficial interest
in the Restricted Global Security to be so transferred, and to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security
having an Amount Payable at Maturity equal to the amount by which the
Amount Payable at Maturity of the Restricted Global Security was
reduced upon such transfer.
(v) Temporary Regulation S Global Security or Regulation S Global
Security to Restricted Global Security. If the holder of a beneficial
interest in a Temporary Regulation S Global Security or a Regulation S
Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with
this Section 305(b)(v). Upon receipt by the Trustee, as Security
Registrar, of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in a Restricted Global Security in an Amount
Payable at Maturity equal to that of the beneficial interest in the
Temporary Regulation S Global Security or the Regulation S Global
Security to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Agent Member to be credited with, and the account of the
Agent Member (and, if applicable, the Euroclear or Clearstream account,
as the case may be) to be debited for, such beneficial interest and (C)
a certificate in substantially the form set forth in Annex B given by
the owner of such beneficial interest, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the Amount Payable
at Maturity of the applicable Temporary Regulation S Global Security or
the Regulation S Global Security, as the case may be,
-37-
and to increase the Amount Payable at Maturity of the Restricted Global
Security, by the Amount Payable at Maturity of the beneficial interest
in the Temporary Regulation S Global Security or the Regulation S
Global Security to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Restricted Global Security having an Amount
Payable at Maturity equal to the amount by which the Amount Payable at
Maturity of the Temporary Regulation S Global Security or the
Regulation S Global Security, as the case may be, was reduced upon such
transfer.
(vi) Non-Global Restricted Security to Global Security. If the
Holder of a Restricted Security (other than a Global Security) wishes
at any time to transfer all or a portion of such Security to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security, the Temporary Regulation S
Global Security or the Regulation S Global Security, in each case, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 305(b)(vi). Upon receipt by (1) the
Depositary of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Depositary to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Security, the Temporary
Regulation S Global Security or the Regulation S Global Security, as
the case may be, in a specified Amount Payable at Maturity equal to the
Amount Payable at Maturity of the Restricted Security (or portion
thereof) to be so transferred, (B) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Agent Member (and, in the case of any transfer pursuant
to Regulation S, the Euroclear and Clearstream account for which such
Agent Member's account is held, or if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (C) an
appropriately completed certificate substantially in the form set forth
in Annex D-1 hereto, if the specified account is to be credited with a
beneficial interest in a Restricted Global Security, or Annex D-2
hereto, if the specified account is to be credited with a beneficial
interest in the Temporary Regulation S Global Security or the
Regulation S Global Security, given by the holder of such beneficial
interest, and (2) the Trustee of (A) the Restricted Security to be so
transferred, (B) the notification from the Depositary of the
transaction described in (1) above and (C) the certificate described in
(1)(C) above, the Trustee, as Security Registrar, shall cancel such
Restricted Security (and issue a new Security in respect of any
untransferred portion thereof) as provided in Section 305(a) and
increase the Amount Payable at Maturity of the Restricted Global
Security, Temporary Regulation S Global Security or Regulation S Global
Security, as the case may be, by the specified Amount Payable at
Maturity as provided in Section 305(b)(iii).
The Trustee shall not be required to accept for such
registration of transfer or exchange any Restricted Security unless the
Trustee and the Company are satisfied that such transfer or exchange is
being effected in compliance with the restrictions on transfer as set
forth in this Indenture and in such Security. In addition, in
connection with a transfer of a Certificated Security by an
Institutional Accredited Investor, such Institutional Accredited
Investor shall be required, prior to such transfer, to furnish to the
Company and the Trustee such certifications, legal opinions or other
information as they or either of them may reasonably require to confirm
that such transfer is being made
-38-
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
(vii) Other Exchanges. (1) In the event that a Global Security or
any portion thereof is exchanged for Securities other than Global
Securities, such other Securities may in turn be exchanged (on transfer
or otherwise) for Securities that are not Global Securities or for
beneficial interests in a Global Security (if any is then outstanding)
only in accordance with such procedures, which shall be substantially
consistent with the provisions of clauses (i) through (vi) above and
(viii) below (including the certification requirements intended to
insure that transfers and exchanges of beneficial interests in a Global
Security comply with Rule 144A, Rule 144 (if available) or Regulation
S, as the case may be) and any Applicable Procedures, as may be from
time to time adopted by the Company and the Trustee; provided that
except as permitted in (3) hereof, no beneficial interest in a
Temporary Regulation S Global Security shall be exchangeable for a
definitive Security until the expiration of the Restricted Period and
then only if the certifications described in Section 201 shall have
been provided in respect of such interest.
(2) Subject to Section 201(d), in connection with a transfer
of a Restricted Security or of an interest therein to an Institutional
Accredited Investor, such Institutional Accredited Investor shall be
required, prior to such transfer, to furnish to the Company and the
Trustee, an appropriately completed certificate substantially in the
form of Annex E and such other certifications, legal opinions or other
information as they or either of them may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act; provided, however, that the purchaser of a Certificated
Security directly from the initial purchaser thereof named as such in
the Purchase Agreement in respect of the securities of such series may,
so long as such security is a Restricted Security, transfer such
security only in accordance with clause (vi) above.
(3) Notwithstanding any other provision of this Section 305,
an initial purchaser named as such in the Purchase Agreement in respect
of the Securities of a series may exchange beneficial interests in the
Temporary Regulation S Global Securities of that series held by it for
one or more Restricted Securities of that series (including an interest
in the Restricted Global Security of that series) upon delivery by such
initial purchaser of instructions for such exchange substantially in
the form of Annex F. Upon receipt of the instruction described in the
preceding sentence, the Trustee shall instruct the Depositary to reduce
the Amount Payable at Maturity of a Temporary Regulation S Global
Security by the Amount Payable at Maturity of the beneficial interest
in such Temporary Regulation S Global Security to be so transferred and
either (A) the Trustee shall instruct the Depositary to increase the
Amount Payable at Maturity of the Restricted Global Security and credit
or cause to be credited to the account of such initial purchaser a
beneficial interest in such Restricted Global Security having an Amount
Payable at Maturity equal to the amount by which the Amount Payable at
Maturity of the Temporary Regulation S Global Security was reduced upon
such transfer or (B) authenticate and deliver one or more Restricted
Securities in definitive form and in the aggregate Amount Payable at
Maturity of the beneficial interest in the Temporary Regulation S
Global Security to be so transferred, pursuant to the instructions
described in the first sentence of this paragraph.
-39-
(viii) Interests in Temporary Regulation S Global Security to be
Held Through Euroclear or Clearstream. Until the termination of the
Restricted Period, interests in the Temporary Regulation S Global
Securities may be held only through Agent Members acting for and on
behalf of Euroclear and Clearstream, provided that this clause (viii)
shall not prohibit any transfer in accordance with Section 305(b)(v)
hereof.
(ix) In addition to the foregoing, the Trustee, as Security
Registrar, shall effect and register, upon receipt of a written request
from the Company to do so, a transfer not otherwise permitted by this
Section 305(b), such registration to be done in accordance with the
otherwise applicable provisions of this Section 305, upon the
furnishing by the proposed transferor or transferee of a written
opinion of counsel (which opinion and counsel are satisfactory to the
Company and the Trustee) to the effect that, and such other
certifications or information as the Company or the Trustee may require
to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. The Company may require such
transfer to be effected by the issuance of Certificated Securities.
(c) Securities Act Legends. Restricted Securities and their Successor
Securities shall bear the legends required by Section 202 and Section 204,
subject to the following:
(i) subject to the following Clauses of this Section 305(c), a
Security of a series or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security of that series or any
portion thereof shall bear the Securities Act Legend borne by such
Global Security while represented thereby;
(ii) subject to the following Clauses of this Section 305(c), a
new Security of a series which is not a Global Security and is issued
in exchange for another Security of that series (including a Global
Security) or any portion thereof, upon transfer or otherwise, shall
bear the Securities Act Legend borne by such other Security, provided
that, if such new Security is required pursuant to Section 305(b)(v) to
be issued in the form of a Restricted Security, it shall bear a
Restricted Securities Legend and, if such new Security is so required
to be issued in the form of a Regulation S Security, it shall bear a
Regulation S Legend;
(iii) Registered Securities and Regulation S Securities that are
not Temporary Regulations S Securities shall not bear a Securities Act
Legend;
(iv) at any time after the Securities of a series may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Security of that series which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Security of that
series (other than a Global Security) or any portion thereof which
bears such a legend if the Trustee has received an Unrestricted
Securities Certificate, satisfactory to the Trustee and duly executed
by the Holder of such legended Security or his attorney duly authorized
in writing, and after such date and receipt of such certificate, the
Trustee shall authenticate and deliver such a new Security in exchange
for or in lieu of such other Security as provided in this Article
Three;
-40-
(v) a new Security of a series which does not bear a Securities
Act Legend may be issued in exchange for or in lieu of a Security of
that series (other than a Global Security) or any portion thereof which
bears such a legend if, in the Company's judgment, placing such a
legend upon such new Security is not necessary to ensure compliance
with the registration requirements of the Securities Act, and the
Trustee, at the direction of the Company, shall authenticate and
deliver such a new Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
305(c), a Successor Security of a Security of a series that does not
bear a particular form of Securities Act Legend shall not bear such
form of legend unless the Company has reasonable cause to believe that
such Successor Security is a "restricted security" within the meaning
of Rule 144 under the Securities Act, in which case the Trustee, at the
direction of the Company, shall authenticate and deliver a new Security
of that series bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article Three.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof. The Trustee shall not have any
responsibility for any actions taken or not taken by the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and Amount Payable
at Maturity and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and Amount Payable
at Maturity and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
-41-
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, Cash Interest on any Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Cash Interest at the office or agency of the Company maintained for
such purpose pursuant to Section 1002; provided, however, that each installment
of Cash Interest, if any, on any Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 309, to the address of such
Person as it appears on the Securities Register or (ii) wire transfer in
immediately in available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
Any Cash Interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner (the
"Special Record Date"): The Company shall, not less than 30 days prior
to the date of any proposed payment of Defaulted Interest, notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the
-42-
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first class postage prepaid, to each Holder of Securities of such
series, at his address as it appears in the Securities Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), Cash
Interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such Cash
Interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, Cash Interest whose Stated Maturity is after
the date of conversion of such Security shall not be payable. Notwithstanding
the foregoing, the terms of any Security that may be converted may provide that
the provisions of this paragraph do not apply, or apply with such additions,
changes or omissions as may be provided thereby, to such Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, any Paying Agent, the Security Registrar and any agent
of the Company or the Trustee hereunder may treat the Person in whose name such
Security is registered upon the Securities Register as the owner of such
Security for the purpose of receiving payment of the Amount Payable at Maturity
and (subject to Section 307) any Cash Interest and any other amounts due on, or
in respect of, such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, nor the Trustee, nor any
Paying Agent, nor the Security Registrar nor any agent of the Company or the
Trustee shall be affected by notice to the contrary. All such payments so made
to any Holder for the time being, or upon his order shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
-43-
Section 309. Cancellation.
All Securities surrendered for payment, redemption, purchase or
repayment by the Company at the option of Holders, registration of transfer or
exchange or conversion or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order (provided that in no event shall the Trustee be
directed to destroy any such cancelled Securities) and, as directed by Company
Order from time to time, the Trustee shall furnish to the Company a certificate
evidencing the cancellation of cancelled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months. For disclosure
purposes under the Interest Act (Canada), whenever in this Indenture or any
Securities issued hereunder interest at a specified rate is to be calculated on
the basis of a period less than a calendar year, the yearly rate of interest to
which such rate is equivalent is such rate multiplied by the actual number of
days in the relevant calendar year and divided by the number of days in such
period.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of conversion, registration of transfer or
exchange of Securities herein expressly provided for), and
-44-
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities of such series
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation;
or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as funds (or such other form of payment as may be permitted for
payments with respect to Securities of such series) in trust for
the purpose and in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for the Amount Payable at
Maturity and Cash Interest and any other amounts due on, or in
respect of, the Securities, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
-45-
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities 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 Amount Payable at Maturity
and Cash Interest and any other amounts due on, or in respect of, the
Securities, for whose payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 401 (and held by it or
any Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including Special
Interest) upon any Security of that series when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the Amount Payable at Maturity at
its Maturity, default in the payment of the Redemption Price on the
Redemption Date, default in the payment of the Repurchase Price on the
Repurchase Date or, if applicable, default in the payment of the any
amounts due upon conversion of the Securities of that series on the
applicable payment date; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series, and continuance of
such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% of the Amount
Payable at Maturity of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
-46-
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default
with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company including this Indenture, whether
such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, if such indebtedness shall not have been
discharged or such acceleration shall not have been rescinded or
annulled within a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% of the
Amount Payable at Maturity of the Outstanding Securities of that series
a written notice specifying such default and requiring the Company to
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, however, that
if such event of default under such bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or mortgage,
indenture or instrument shall be remedied or cured by the Company or
waived by the holder of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured, or waived without further action upon the
part of either the Trustee or any of the Holders of Outstanding
Securities; and provided further, that, subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have knowledge
of such default unless either (A) a Responsible Officer of the Trustee
assigned to its Corporate Trust Department shall have actual knowledge
of such default or (B) the Trustee shall have received at its principal
Corporate Trust Office written notice thereof from the Company, from
any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization or
winding-up of the Company under the Companies' Creditors Arrangement
Act (Canada), the Bankruptcy and Insolvency Act (Canada) or the
Winding-Up Act (Canada) or any other bankruptcy, insolvency or
analogous laws, or the issuing of a sequestration order or process of
execution against the Company or any substantial part of its property,
or appointing a receiver of the Company or of any substantial part of
its property, or ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order or appointment
unstayed, undischarged and in effect for a period of 60 days from the
date thereof; or
(7) the institution by the Company of proceedings to be
adjudicated bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act (Canada)
or any other bankruptcy, insolvency or analogous laws, or the consent
by it to the filing of any such petition or to the appointment of a
receiver or similar official of the Company or of any substantial part
of its property, or the making by it of a general assignment for the
benefit of creditor, or the Company's admitting in writing its
inability to pay its debts generally
-47-
as they become due or taking corporate action in furtherance of any of
the aforesaid purposes; or
(8) any other Event of Default provided with respect to Securities
of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% of the Amount Payable at Maturity of the
Outstanding Securities of that series may declare the Issue Price of and Accrued
Interest and any accrued and unpaid Cash Interest on all of the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such Issue Price plus Accrued Interest shall become immediately due and payable.
If an Event of Default specified in Section 501(6) or 501(7) with respect to
Securities of any series at the time Outstanding occurs, the Issue Price of and
Accrued Interest on all the Securities of that series shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority of the Amount Payable at Maturity of
the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum (or
such other form of payment as may be permitted for payments with
respect to Securities of such series) sufficient to pay
(A) all overdue Cash Interest on all Outstanding Securities
of that series,
(B) the Issue Price plus Accrued Interest on any Outstanding
Securities of that series (and any other amounts due on, or in
respect of, such Outstanding Securities) which have become due
otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue Cash Interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
-48-
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the Issue Price and Accrued
Interest and any other amount due on, or in respect of, the Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any Cash Interest on any
Security when such Cash Interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the Amount Payable at
Maturity on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee (in cash or in
such other form of payment as may be permitted for payments with respect to
Securities of such series), for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities for the Issue Price,
Accrued Interest and Cash Interest (and any other amounts due on, or in respect
of, such Securities) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue Issue Price, Accrued Interest and
Cash Interest (and any other amounts due on, or in respect of, such Securities),
at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
-49-
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such Judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of the Issue Price, Accrued
Interest or Cash Interest (or any other amounts due on, or in respect of, such
Securities), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
the Issue Price of, and Accrued Interest and Cash Interest and any
other amounts due on, or in respect of, the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for the Issue Price of, and
Accrued Interest and Cash Interest (and any other amounts due on, or in
respect of, the Securities), respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
-50-
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% of the Amount Payable at
Maturity of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceeding in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority of the Amount Payable at Maturity of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holder shall have
any right in any manner whatever by virtue of, or by availing themselves of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 508. Unconditional Right of Holders to Receive Amount Payable at
Maturity and Cash Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the Amount Payable at Maturity and (subject to Section 307)
Cash Interest and any other amounts due on, or in respect of, such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date or, in the case of purchase or repayment by
the Company at the option of the Holder, on the Repayment Date), and, if the
terms of such Security so provide, to convert such Security in accordance with
its terms, and to institute suit for the enforcement of any such payment and, if
applicable, any such right to convert, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
-51-
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority of the Amount Payable at Maturity of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority of the Amount Payable at
Maturity of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the Amount Payable at Maturity or Cash
Interest or any other amounts due on, or in respect of, any Security of
such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, 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
-52-
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% of the
Amount Payable at Maturity of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
Amount Payable at Maturity or Cash Interest or any other amounts due on, or in
respect of, any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption Date
or, in the case of purchase or repayment by the Company at the option of the
Holder, on or after the Repayment Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time plead or in any manner whatsoever claim or take the
benefit or advantage of any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall
-53-
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(b) In case 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 their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority of the Amount Payable at
Maturity of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Securities Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the Amount Payable at Maturity
or Cash Interest or any other amounts due on, or in respect of, any Security of
such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of
-54-
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee
-55-
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(9) 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
Securities and this Indenture;
(10) 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; and
(11) 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 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money received
by it hereunder except such as it may agree with the Company to pay thereon. So
long as no Event of Default shall have occurred and be continuing,
-56-
all interest allowed on any such money shall be paid from time to time upon
receipt by the Trustee of a Company Order.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
agreed to in writing by the parties from time to time and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense, including taxes (other than taxes based
upon, measured by or determined by the income, capital, profit or
assets of the Trustee), incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. Such indemnification shall survive the resignation or
removal of the Trustee, the termination of this Agreement and the
satisfaction and discharge of the trust.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the indentures relating to
the Company's 5 3/4% Convertible Debentures due 2004, the Company's 7 3/4%
Convertible Debentures due 2016, the Company's 9 7/8% Sinking Fund Debentures
due 2019, the Company's 9.60% Debentures due 2022, the Company's 7.20%
-57-
Debentures due 2032, the Company's 7 3/4% Notes due 2012, the Company's Liquid
Yield Option Notes due 2021 and the Company's 3 1/2% Subordinated Convertible
Debentures due 2052.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust power, having a combined capital and surplus of
at least $50,000,000 subject to supervision or examination by Federal or State
authority and having its Corporate Trust Office in the Borough of Manhattan, The
City of New York. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee ceases to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority of the Amount Payable at
Maturity of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
-58-
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any Series shall be appointed by Act of the Holders
of a majority of the Amount Payable at Maturity of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any Series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an
-59-
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) and (b) of this section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
-60-
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent (including the
authenticating agency contemplated by this Indenture), shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
-61-
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
The Bank of New York,
As Trustee
By...............................,
As Authenticating Agent
By................................
Authorized Officer
Section 615. Appointment of Additional Trustees.
At any time or times, for the purpose of conforming to any legal
requirements, restrictions or conditions in any jurisdiction, or if the Trustee
shall deem it necessary or prudent in the interest of the Holders of Outstanding
Securities so to do, the Company and the Trustee shall have the power to appoint
and, upon the request of the Trustee, the Company shall for such purpose join
with the Trustee in the execution, delivery and performance of an indenture
supplemental hereto and all other instruments and agreements necessary or proper
(i) to appoint one or more Persons (in this Indenture called "Additional
Trustees") approved by the Trustee, either to act as co-trustee or co-trustees
jointly with the Trustee or to act as separate trustee or trustees for the
purpose of exercising such right and powers as may be provided in such
supplemental indenture and (ii) to vest in any Additional Trustee any right or
power of the Trustee hereunder, subject to the remaining provisions of this
Section 615. Any such supplemental indenture shall include all provisions
required to be included by the Trust Indenture Act as then in effect with
respect to the eligibility, qualification, rights, power, duties, obligations,
liabilities and immunities of such Additional Trustee. The rights, powers,
duties and obligations conferred or imposed upon the trustees or any of them
shall be conferred or imposed upon and exercised or performed by the Trustee and
any Additional Trustee jointly, as provided in such supplemental indenture or
any such instrument and agreement, except to the extent that, under any law of
any jurisdiction in which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations shall be exercised and
performed by the Additional Trustee. No Additional Trustee shall be given the
power to authenticate Securities. In case the Company shall not have joined in
the execution of such supplemental indenture or any such instruments or
agreements within 15 days after the receipt by it of a written request so to do,
or in case any Event of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
-62-
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually not later than 15 days after the Regular Record Date
for Cash Interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date or if there is no
Regular Record Date for Cash Interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to Holders a brief report, dated as of
such May 15, which complies with the provisions of such Section 313(a).
-63-
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation, amalgamation, merger or statutory arrangement of the
Company with or into any other corporation or corporations (whether or not an
Affiliate), or successive consolidations, amalgamations, mergers or statutory
arrangements in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance or lease of all or
substantially all the property of the Company, to any other corporation (whether
or not an Affiliate) authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees, that any such
consolidation, amalgamation, merger, statutory arrangement, sale, conveyance or
lease shall be upon the condition that (i) immediately after such consolidation,
amalgamation, merger, statutory arrangement, sale, conveyance or lease the
corporation (whether the Company or such other corporation) formed by or
surviving any such consolidation, amalgamation or merger, or to which such sale,
conveyance or lease shall have been made (the "Successor Corporation"), shall
not be in default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or performed by the
Company; and (ii) the due and punctual payment of the Amounts Payable at
Maturity and Cash Interest on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, and,
for each Security that by its terms provides for conversion, shall have provided
for the right to convert such Security in accordance with its terms, shall be
expressly assumed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Successor Corporation (if
other than the Company).
If, upon any such consolidation, amalgamation, merger or statutory
arrangement, or upon any such sale, conveyance or lease, or upon any
consolidation, amalgamation, merger or statutory
-64-
arrangement of any Restricted Subsidiary, or upon the sale, conveyance or lease
of all or substantially all the property of any Restricted Subsidiary to any
other corporation, any Principal Property of the Company or of any Restricted
Subsidiary or any shares of stock or indebtedness of any Restricted Subsidiary
owned by the Company or a Restricted Subsidiary immediately prior thereto or
immediately thereafter would thereupon become subject to any mortgage securing
any Indebtedness, unless assumption of such mortgage would be permitted under
Section 1007 without securing the Outstanding Securities, the Company, prior to
such consolidation, amalgamation, merger, statutory arrangement, sale,
conveyance or lease, will secure or cause to be secured by indenture
supplemental hereto, the due and punctual payment of the Amounts Payable at
Maturity and Cash Interest on the Securities (together with, if and to the
extent the Company shall so determine, any other indebtedness or other
obligation then existing or thereafter created) by a direct mortgage equally and
ratably with (or prior to) any and all indebtedness and obligations secured or
to be secured thereby and so long as such indebtedness is so secured.
Section 802. Taxing Jurisdiction.
If (i) the Company enters into (A) a consolidation, amalgamation, or
merger with or into any other corporation, or statutory arrangement in which the
Company participates or (B) any sale, conveyance or lease of all or
substantially all of its property and (ii) the corporation (whether the Company
or another corporation) formed by or surviving any such consolidation,
amalgamation, merger or statutory arrangement, or to which such sale, conveyance
or lease will have been made, is organized under the laws of a jurisdiction
other than Canada or the United States or any province, territory, state or
district thereof (each, a "Relevant Taxing Jurisdiction"), then the Company or
successor corporation, as the case may be, will enter into a supplemental
indenture, satisfactory in form to the Trustee, obligating it to make all
payments on account of any series of Securities without withholding of or
deduction for, or on account of, any present or future taxes or governmental
charges ("Specified Taxes") imposed or levied by a Relevant Taxing Jurisdiction,
unless the Company (or successor corporation) is required by law, or the
interpretation or administration thereof, to withhold or deduct such Specified
Taxes. In that event, the Company (or successor corporation) will pay as
additional interest such additional amounts ("Other Additional Amounts") as may
be necessary in order that the net amounts received by each Holder of such
series of Securities after such withholding or deduction, including any
withholding or deduction with respect to such Other Additional Amounts, shall
equal the respective amounts of principal and interest which would have been
receivable in respect of the Securities of such series in the absence of such
withholding or deduction, except that no such Other Additional Amounts shall be
payable with respect to payments made to a Holder:
(1) if such Holder is liable for such taxes by reason of such
Holder or the beneficial owner of the Security of such series having a
present or former direct or indirect connection with the Relevant
Taxing Jurisdiction other than the mere holding of the Security of such
series or the receipt of payment in respect thereof;
(2) for any taxes imposed as a result of the failure of such
Holder or beneficial owner to comply with certification,
identification, declaration or similar reporting requirements, if such
compliance is required by statute or by regulation, administrative
practice or any applicable treaty, as a precondition to relief or
exemption from such tax;
-65-
(3) for any estate, inheritance, gift, sales, transfer, personal
property or similar tax, duty or fine, assessment or other governmental
charge;
(4) for any tax which is payable otherwise than by withholding or
deduction from payment by us of principal of, or interest on, the
Security of such series;
(5) if the payment of Other Additional Amounts would be for any
withholding or deduction imposed on a payment to an individual which is
required to be made pursuant to an European Union directive on the
taxation of savings implementing the conclusions of ECOFIN Council
meeting of November 26-27, 2000 or any law implementing or complying
with or introduced in order to conform to such directive; or
(6) any combination of items (1) - (5) above;
nor will such Other Additional Amounts be paid with respect to a payment on the
Security to a Holder who is a fiduciary or partnership or other than the sole
beneficial owner of such Security to the extent that a beneficiary or settlor
with respect to such fiduciary, or a member of such partnership or a beneficial
owner thereof, would not have been entitled to receive a payment of such Other
Additional Amounts had such beneficiary, settlor, member or beneficial owner
received directly its beneficial or distributive share of such payment.
The Company shall have the right reasonably to require a Holder as a
condition of payment of amounts on the Securities of such series to present at
such place as the Company shall reasonably designate a certificate in such form
as the Company may from time to time prescribe to enable the Company to
determine its duties and liabilities with respect to (i) any Specified Taxes
that the Company or any withholding agent may be required to deduct or withhold
from payments in respect of a Security under any present or future law of any
Relevant Taxing Jurisdiction or any regulation of any taxing authority thereof
and (ii) any reporting or other requirements under such laws or regulations. To
the extent not otherwise prohibited by applicable laws and regulations, the
Company shall be entitled to determine its duties and liabilities with respect
to such deduction, withholding, reporting or other requirements on the basis of
information contained in such certificate, or, if no certificate shall be
presented, on the basis of any presumption created by any such law or
regulation, and shall be entitled to act in accordance with such determination.
References to the "Company" in this Section 802 shall also be deemed to refer to
any successor thereof.
Section 803. Successor Corporation Substituted.
In case of any such consolidation, amalgamation, merger, statutory
arrangement, sale, conveyance or lease and upon the assumption by the Successor
Corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
Amounts Payable at Maturity and Cash Interest on all of the Securities and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, and, for each Security that by its
terms provides for conversion, shall have provided for the right to convert such
Security in accordance with its terms, such Successor Corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
the Company and the Company shall thereupon be relieved of any further
obligation or liabilities hereunder or upon the Securities, and the Company as
the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound-up or
-66-
liquidated. Such Successor Corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company any or all the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such Successor
Corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such Successor Corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of this Indenture.
In case of any such consolidation, amalgamation, merger, statutory
arrangement, sale, conveyance or lease, or change in the name of the Company,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may, in the opinion of the Trustee, be
appropriate.
The Trustee shall receive an Opinion of Counsel as conclusive evidence
that any such consolidation, amalgamation, merger, statutory arrangement, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article 8.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to the
Amount Payable at Maturity, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in uncertificated form;
or
-67-
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to add to or change any of the provisions of this Indenture
with respect to any Securities that by their terms may be converted
into securities or other property other than Securities of the same
series and of like tenor, in order to permit or facilitate the
issuance, payment or conversion of such Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66-2/3% of the Amount
Payable at Maturity of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the Amount Payable at Maturity
of, or any installment of Cash Interest on, any Security, or reduce the
Amount Payable at Maturity thereof or the rate of Cash Interest thereon
or any premium payable upon the redemption thereof, or reduce the
amount that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or Cash
Interest thereon or any other amounts due on, or in respect of, any
Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in
the case of purchase or repayment by the Company at the option of the
Holder, on or after the Repayment Date),
-68-
(2) if any Security provides that the Holder may require the
Company to repurchase or convert such Security, impair such Holder's
right to require repurchase or conversion of such Security on the terms
provided therein, or
(3) reduce the percentage of the Amount Payable at Maturity of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8); or
(5) modify the obligations to deliver information as set forth in
Section 1009.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
-69-
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Amount Payable at Maturity, Cash Interest and Other
Amounts.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the Amount Payable at Maturity
and Cash Interest and any other amounts due on, or in respect of, the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion, redemption or purchase and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such
-70-
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
Amount Payable at Maturity or Cash Interest or any other amounts due on, or in
respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
Amount Payable at Maturity or Cash Interest or any other amounts so becoming due
until such sum shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the Amount Payable at
Maturity or Cash Interest or any other amounts due on, or in respect of, any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the Amount Payable at Maturity or Cash Interest or any other amounts so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such Amount Payable at Maturity or Cash Interest or any other amounts due on, or
in respect of, any Securities and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act. The
Company will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the Amount Payable at
Maturity or Cash Interest or any other amounts due on, or in respect of,
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of the
Amount Payable at Maturity or Cash Interest or any other amounts due on, or in
respect of, the Securities of that series; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
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 Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the Amount Payable at Maturity or
Cash Interest or any
-71-
other amounts due on, or in respect of, any Security of any series and remaining
unclaimed for one year after such Amount Payable at Maturity or Cash Interest or
other amount has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor (if unsecured), look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, 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 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as 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 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (l) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
-72-
Section 1007. Negative Pledge.
The Company will not, and will not permit any Restricted Subsidiary to,
create or incur or assume any mortgage, hypothecation, charge, pledge, lien or
other security interest (each, a "mortgage"), securing any indebtedness for
money borrowed ("Indebtedness"), of or upon any Principal Property, or on shares
of stock or indebtedness of any Restricted Subsidiary, now owned or hereafter
acquired by the Company or a Restricted Subsidiary, without making effective
provision, and the Company covenants that in any such case it will make or cause
to be made effective provision, whereby the Outstanding Securities (together
with, if and to the extent the Company shall so determine, any other
indebtedness or other obligations then existing or thereafter created) shall be
secured by such mortgage equally and ratably with (or prior to) any and all
indebtedness and obligations secured or to be secured thereby, so long as such
Indebtedness shall be so secured; provided, however, that the foregoing
covenants shall not prevent, restrict or apply to any of the following:
(a) any mortgage on property, shares of stock or Indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(b) any mortgage on any Principal Property existing at the time of
acquisition of such Principal Property by the Company or a Restricted
Subsidiary, whether or not assumed by the Company or such Restricted Subsidiary;
provided, however, that no such mortgage shall extend to any other Principal
Property of the Company or any Restricted Subsidiary;
(c) any mortgage on any Principal Property (including any improvements
on an existing Principal Property) hereafter acquired or constructed by the
Company or any Restricted Subsidiary to secure the payment of all or any part of
the purchase price or cost of construction of such Principal Property (or to
secure any indebtedness incurred by the Company or a Restricted Subsidiary for
the purpose of financing all or any part of the purchase price thereof or cost
of construction thereof or of improvements thereon) created prior to, at the
time of or within 90 days after the later of the acquisition, completion of
construction, or commencement of full operation of such Principal Property;
provided, however, that no such mortgage shall extend to any other Principal
Property of the Company or a Restricted Subsidiary other than, in the case of
any such construction or improvement, any theretofore unimproved real property
on which the Principal Property so constructed, or the improvement, is located;
(d) any mortgage on any Principal Property of any Restricted Subsidiary
to secure Indebtedness owing by it to the Company or to a Restricted Subsidiary;
(e) any mortgage on any Principal Property of the Company or any
Restricted Subsidiary in favor of (i) Canada or any Province or Territory
thereof, or any political subdivision, department, agency or instrumentality of
any of them; or (ii) the United States of America or any State thereof, or any
political subdivision, department, agency or instrumentality of any of them, to
secure partial, progress, advance or other payments to the Company or any
Restricted Subsidiary pursuant to the provisions of any contract or statute;
(f) any mortgage on any Principal Property of the Company or any
Restricted Subsidiary existing on the date of this Indenture;
-73-
(g) any mortgage on any Principal Property of the Company or any
Restricted Subsidiary created for the sole purpose of renewing or refunding any
mortgage, referred to in Section 1007(a) through (f), inclusive, above;
provided, however, that the Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such renewal or
refunding, and that such renewal or refunding mortgage shall be limited to all
or any part of the same property and improvements thereon which secured the
mortgage renewed or refunded; or
(h) any mortgage on any Principal Property created, incurred or assumed
to secure Indebtedness of the Company or any Restricted Subsidiary, which would
otherwise be subject to the foregoing restrictions of this Section 1007, in an
aggregate amount which, together with the aggregate principal amount of other
Indebtedness secured by mortgages on Principal Properties then outstanding
(excluding any such Indebtedness secured by mortgages covered in Section 1007
(a) through (g), inclusive, above) and the Attributable Debt in respect of all
Sale and Leaseback Transactions entered into after the date of this Indenture
(not including Attributable Debt with respect to any such Sale and Leaseback
Transactions the proceeds of which have been or will be applied in accordance
with Section 1008(b)), would not at the time exceed 5% of Consolidated Net
Tangible Assets.
For purposes of this Section 1007, the following shall not be deemed to
be mortgages securing Indebtedness and, accordingly, nothing contained in this
section shall prevent, restrict or apply to (i) any acquisition by the Company
or any Restricted Subsidiary of any property or assets subject to any
reservation or exception under the terms of which any vendor, lessor or assignor
creates, reserves or excepts or has created, reserved or excepted an interest in
nickel, copper, cobalt, precious metals, oil, gas or any other mineral or timber
in place or the proceeds thereof; (ii) any conveyance or assignment under the
terms of which the Company or any Restricted Subsidiary conveys or assigns to
any Person or Persons an interest in nickel, copper, cobalt, precious metals,
oil, gas or any other mineral or timber in place or the proceeds thereof; or
(iii) any mortgage upon any property or assets owned or leased by the Company or
any Restricted Subsidiary or in which the Company or any Restricted Subsidiary
owns an interest to secure to the Person or Persons paying the expenses of
developing or conducting operations for the recovery, storage, transportation or
sale of the mineral resources of the said property (or property with which it is
unitized) the payment to such Person or Persons of the Company's or the
Restricted Subsidiary proportionate part of such development or operating
expense.
Section 1008. Limitation on Sale and Leaseback Transactions.
The Company will not itself, and will not permit any Restricted
Subsidiary to, enter into any arrangement after the date of this Indenture with
any bank, insurance company or other lender or investor (other than the Company
or another Restricted Subsidiary) providing for the leasing by the Company or
any such Restricted Subsidiary of any Principal Property (except a lease for a
temporary period not to exceed three years by the end of which it is intended
that the use of such Principal Property by the lessee will be discontinued),
which has been or is to be sold or transferred, more than 120 days after the
later of the acquisition, completion of construction, or commencement of full
operation thereof, by the Company or such Restricted Subsidiary 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 Principal Property (herein
referred to as a "Sale and Leaseback Transaction") unless, either:
-74-
(a) immediately prior to the entering into of such arrangement, the
Company or such Restricted Subsidiary could, pursuant to Section 1007(h), create
a mortgage on such Principal Property to secure Indebtedness in an amount equal
to the Attributable Debt with respect to such Sale and Leaseback Transaction, or
(b) the Company applies, within 120 days after the sale or transfer, an
amount equal to the fair market value of the Principal Property so sold and
leased back at the time of entering into such Sale and Leaseback Transaction (as
determined by the Board of Directors) to the prepayment (other than mandatory
prepayment) of Funded Debt of the Company or any Restricted Subsidiary (other
than Funded Debt held by the Company or any Restricted Subsidiary).
Section 1009. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1004 to 1008, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66-2/3% of the Amount Payable at Maturity of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1011. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of Original Issue
Discount for U.S. federal income tax purposes (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of such year and (ii)
such other specific information relating to such Original Issue Discount for
U.S. federal income tax purposes as may then be relevant under the Code.
-75-
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the Amount Payable at Maturity of Securities of such
series to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the Amount Payable at Maturity of any Security of
such series, provided that the unredeemed portion of the Amount Payable at
Maturity of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. If less
than all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the Amount Payable at Maturity of
the Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.
-76-
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption as aforesaid and,
in the case of any Securities selected for partial redemption as aforesaid, the
Amount Payable at Maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the Amount Payable at Maturity of such Securities which has been or
is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 20 nor more than 60 Business Days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Securities Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the Amounts Payable at Maturity) of the particular
Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be
redeemed, the Amount Payable at Maturity of the particular Security to
be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that Cash Interest thereon shall cease to accrue on and
after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the
terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate and the place or places where
such Securities may be surrendered for conversion,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP numbers, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request delivered
a reasonable time prior to the date such notice is to be given, by the Trustee
in the name and at the expense of the Company.
-77-
Section 1105. Deposit of Redemption Price.
One Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued and unpaid Cash
Interest on, all the Securities which are to be redeemed on that date, other
than any Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive Cash Interest as provided
in the second penultimate paragraph of Section 307 or in the terms of such
Security) be paid to the Company upon Company Request or, if then held by the
Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid Cash Interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid Cash Interest to the Redemption Date; provided, however,
that installments of Cash Interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate Amount
Payable at Maturity equal to and in exchange for the unredeemed portion of the
Amount Payable at Maturity of the Security so surrendered.
-78-
Section 1108. Purchase of Securities.
The Company shall have the right at any time and from time to time to
purchase Securities in the open market or otherwise at any price.
ARTICLE TWELVE
PURCHASE OR REPAYMENT OF SECURITIES BY THE COMPANY AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Securities of any series the terms of which provide to each Holder the
option to require the Company to purchase or repay such Securities in certain
circumstances shall, upon exercise of such option, be repayable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
Section 1202. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 30 nor more than 90 days prior to such
Repayment Date to each Holder of Securities of such series in accordance with
Section 106.
Such notice shall state:
(a) the Repayment Date;
(b) the Repayment Price;
(c) the place or places where, and the date by which, such Securities
are to be surrendered for payment of the Repayment Price;
(d) a description of the procedure which a Holder must follow to
exercise the purchase or repayment option;
(e) that exercise of the purchase or repayment option to elect
repayment is irrevocable; and
(f) such other information as the Company may consider appropriate for
inclusion.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1203. Deposit of Repayment Price.
One Business Day prior to the Repayment Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Repayment Price of and (unless the Repayment Date
shall be an Interest Payment Date) accrued
-79-
and unpaid Cash Interest, if any, on all of the Securities of such series which
are to be repaid on that date.
Section 1204. Securities Payable on Repayment Date.
Holders having duly exercised the option to require purchase or
repayment by the Company on any Repayment Date as specified in the form of
Security for such series as provided in Section 203, the Securities of such
series so to be purchased or repaid shall, on the Repayment Date, become due and
payable at the Repayment Price applicable thereto and from and after such date
(unless the Company shall default in the payment of the Repayment Price and
accrued and unpaid Cash Interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for purchase or repayment in accordance with
the terms of such Security, provided the option has been duly exercised and the
Security duly surrendered as specified in the form of such Security, such
Security shall be paid by the Company at the Repayment Price together with
accrued and unpaid Cash Interest to the Repayment Date; provided, however, that
installments of Cash Interest whose Stated Maturity is on or prior to such
Repayment Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security shall not be paid upon due exercise of the option and
surrender thereof for purchase or repayment, the Repayment Price shall, until
paid, bear interest from the Repayment Date at the rate prescribed therefor in
such Security.
Section 1205. Securities Repaid in Part.
Any Security which by its terms may be purchased or repaid by the
Company in part at the option of the Holder and which is to be purchased or
repaid only in part by the Company shall be surrendered at any office or agency
of the Company designated for that purpose pursuant to Section 1002 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder, in
aggregate Amount Payable at Maturity equal to and in exchange for the
unpurchased or unrepaid portion of the Amount Payable at Maturity of the
Security so surrendered.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
-80-
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such Securities of any
series.
Section 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted in accordance with their terms
or which have been redeemed either at the election of the Company (a) pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series or (b) have been
purchased or repaid by the Company through the exercise of an option by the
Holder as provided for in the terms of such Securities; provided that such
Securities have not been previously so credited. Such Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1302 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
CONCERNING THE HOLDERS
Section 1401. Action by Holders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate Amount Payable at Maturity of Securities of
any series may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by an instrument
or a number of instruments
-81-
as provided in Section 104, or (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article Fifteen, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
Section 1402. Proof of Record of Holders' Meeting.
Subject to the provisions of Sections 601 and 1505, the record of any
Holders' meeting shall be proved in the manner provided in Section 1506.
Section 1403. Identification of Company-Owned Securities.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities; and, subject to
the provisions of Section 601, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
Section 1404. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 1401, of the taking of any action by the Holders of the
percentage in aggregate Amount Payable at Maturity of the Securities specified
in this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included in the Securities
the Holders of which have consented to or are bound by consents to such action
may, by filing written notice with the Trustee at its principal office and upon
proof of holding as provided in Section 1402, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future holders and owners of such Security and of any Security issued on
registration of transfer thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon any
such Security or such other Security.
ARTICLE FIFTEEN
HOLDERS' MEETINGS
Section 1501. Purposes of Meetings.
A meeting of Holders of any or all series of Securities may be called
at any time and from time to time pursuant to the provisions of this Article
Fifteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of any or all series of Securities
pursuant to any of the provisions of Article Five;
-82-
(2) to remove the Trustee and nominate a successor trustee with
respect to the Securities of such series pursuant to the provisions of
Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate Amount Payable at
Maturity of the Securities of such series under any other provision of
this Indenture or under applicable law.
Section 1502. Call of Meetings By Trustee.
The Trustee may at any time call a meeting of Holders of any or all
series of Securities to take any action specified in Section 1501, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Holders of any
series of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed to all Holders of Securities of such series at their addresses as they
shall appear on the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
Section 1503. Call of Meetings By Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board
of Directors, or the Holders of at least 25% of the Amount Payable at Maturity
of the Outstanding Securities of any series, shall have requested the Trustee to
call a meeting of the Holders of such series, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the time
and the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 1501, by mailing notice thereof
as provided in Section 1502.
Section 1504. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 1505. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any such
regulation, the holding of
-83-
Securities shall be proved in the manner specified in Section 1402 and the
appointment of any proxy shall be proved in the manner specified in said Section
1402 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any bank, broker or trust company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman and a temporary secretary of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section 1503, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman and a temporary secretary. A
permanent chairman and a permanent secretary of the meeting shall be elected by
the Persons holding or representing a majority of the Securities represented at
the meeting.
Subject to the provisions of Section 1404, at any meeting each Holder
or proxy shall be entitled to one vote for each $1,000 Amount Payable at
Maturity of Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the permanent chairman (or the
temporary chairman, if no permanent chairman shall have been elected pursuant to
this Section) of the meeting to be not Outstanding. Neither the temporary
chairman nor the permanent chairman of the meeting shall have a right to vote
other than by virtue of Securities held by him or instruments in writing as
aforesaid duly designating him as the Person to vote on behalf of other Holders.
Any meeting of Holders duly called pursuant to the provisions of Section 1502 or
1503 may be adjourned from time to time by the Persons holding or representing a
majority of the Securities represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate Amount Payable at Maturity sufficient to
take action upon the business for the transaction of which such meeting was
called shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing a majority of the Securities
represented at the meeting may adjourn such meeting with the same effect for all
intents and purposes, as though a quorum had been present.
Section 1506. Voting.
The vote upon any resolutions submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman
(or the temporary chairman, if no permanent chairman shall have been elected
pursuant to Section 1505) of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the permanent secretary (or the temporary
secretary, if no permanent secretary shall have been elected pursuant to Section
1505) of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of
Holders shall be prepared by the permanent secretary (or the temporary
secretary, if no permanent secretary shall have been elected pursuant to Section
1505) of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 1502. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman
-84-
and the permanent secretary of the meeting (or if no permanent chairman and/or
permanent secretary shall have been elected pursuant to Section 1505, then the
temporary chairman and/or the temporary secretary, as the case may be, shall
take such action) and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 1507. No Delay of Rights by Meeting.
Nothing in this Article Fifteen contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.
ARTICLE SIXTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1601. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may at its option, at any time, elect to have either
Section 1602 (if applicable) or Section 1603 (if applicable) be applied with
respect to the Securities of any series designated pursuant to Section 301 as
being defeasable pursuant to such Section 1602 or 1603 to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Sixteen. Any such election shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301.
Section 1602. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to Securities of any series, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series on the date the conditions set forth below are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under the Outstanding Securities of such series and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of the Outstanding Securities of such
series to receive, solely from the trust fund described in Section 1303 and as
more fully set forth in such Section, payments in respect of the Amount Payable
at Maturity and Cash Interest on such Securities when payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Sixteen. Subject to compliance with this
Article Sixteen, the Company may exercise its option under this Section with
respect to Securities of any
-85-
series notwithstanding the prior exercise of its option under Section 1303 with
respect to such Securities of such series.
Section 1603. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to Securities of any series of Securities the Company shall
be released from its obligations under Sections 501(5), 1004, 1005, 1006, 1007
and 1008 with respect to the Outstanding Securities of such series on and after
the date the conditions set forth below are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and the
Securities shall be unaffected thereby.
Section 1604. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 1602 or Section 1603 to the Outstanding Securities of series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Sixteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or
(B) U.S. Government Obligations 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, 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 (or other qualifying trustee) to pay and discharge, the Amount
Payable at Maturity and Cash Interest on the Outstanding Securities of
such series on the Stated Maturity of such Amount Payable at Maturity
or Cash Interest in accordance with the terms of this Indenture and of
the Securities of such series. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of the principal of or interest on any
such U.S. Government Obligation held by such custodian or the account
of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S.
-86-
Government Obligation or a specific payment of the principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt;
(2) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, insofar as subsections 501(6) and (7) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company
in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(3) such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company;
(4) such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound;
(5) in the case of an election under Section 1602, the Company
shall have delivered to the Trustee an Opinion of Counsel 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 this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(6) in the case of an election under Section 1603, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred;
(7) such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitation which
may be imposed on the Company in connection therewith pursuant to
Section 301; and
(8) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1602 or the covenant defeasance under Section 1603 (as the case may be)
have been complied with.
-87-
Section 1605. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 1604 in respect of the Outstanding
Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities 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 Holders of
such Securities, of all sums due and to become due thereon in respect of the
Amount Payable at Maturity and Cash Interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1604 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 Securities of such series.
Anything in this Article Sixteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1604 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Consent to Jurisdiction and Service of Process.
The Company irrevocably submits to the jurisdiction of any New York
State or Federal court sitting in The City of New York over any suit, action or
proceeding arising out of or relating to this Indenture or any Security. The
Company irrevocably waives, to the fullest extent permitted by law, any
objection which it may have to the laying of the venue of any such suit, action
or proceeding brought in such a court and any claim that any such suit, action
or proceeding brought in such a court has been brought in any inconvenient
forum. The Company agrees that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon the
Company and may be enforced in the courts of Canada (or any other courts to the
jurisdiction of which the Company is subject) by a suit upon such judgment,
provided that service of process is effected upon the Company in the manner
specified in the following paragraph or as otherwise permitted by law; provided,
however, that the Company does not waive, and the foregoing provisions of this
sentence shall not constitute or be deemed to constitute a waiver of, (i) any
right to appeal any such judgment, to seek any stay or otherwise to seek
reconsideration or review of any such judgment or (ii) any stay of execution or
levy pending an appeal from, or a suit, action or proceeding for reconsideration
or review of, any such judgment.
-88-
As long as any of the Securities remain outstanding, the Company will
at all times have an authorized agent in the Borough of Manhattan, The City of
New York upon whom process may be served in any legal action or proceeding
arising out of or relating to the Indenture or any Security. Service of process
upon such agent and written notice of such service mailed or delivered to the
Company shall to the extent permitted by law be deemed in every respect
effective service of process upon the Company in any such legal action or
proceeding. The Company hereby appoints CT Corporation System as its agent for
such purpose, and covenants and agrees that service of process in any such legal
action or proceeding may be made upon it at the office of such agent at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other address in the Borough
of Manhattan, The City of New York, as the Company may designate by written
notice to the Trustee).
The Company hereby consents to process being served in any suit, action
or proceeding of the nature referred to in the preceding paragraphs by service
upon such agent together with the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of the
Company set forth in the first paragraph of this instrument or to any other
address of which the Company shall have given written notice to the Trustee. The
Company irrevocably waives, to the fullest extent permitted by law, all claim of
error by reason of any such service (but does not waive any right to assert lack
of subject matter jurisdiction) and agrees that such service (i) shall be deemed
in every respect effective service of process upon the Company in any such suit,
action or proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to the
Company.
Nothing in this Section shall affect the right of the Trustee or any
Holder to serve process in any manner permitted by law or limit the right of the
Trustee to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
Section 1702. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, shareholders,
officers or directors, as such, of the Company or of any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or any of the Securities or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issue of such Securities.
-89-
Section 1703. Execution in Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-90-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
INCO LIMITED
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
-00-
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
TEMPORARY REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(iii)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] Inco Limited (the "Securities")
-------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ aggregate Amount
Payable at Maturity of Securities which are evidenced by the Restricted Global
Security (CUSIP No. _________) and held with the Depositary in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will take
delivery thereof in the form of an equal aggregate Amount Payable at Maturity of
Securities evidenced by the Temporary Regulation S Global Security (CUSIP No.
_____________), which amount, immediately after such transfer, is to be held
with the Depositary through Euroclear or Clearstream or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(a) the offer of the Securities was not made to a person in the
United States;
(b) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the transferee was outside
the United States,
(ii) in the case of Rule 903, the transaction was executed
in, on or through a physical trading floor of an
established foreign securities exchange that is
located outside the United States; or
(iii) in the case of Rule 904, the transaction was executed
in, on or through the facilities of a designated
offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
A-1-1
(c) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(a) of Regulation S,
as applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depositary through Euroclear or Clearstream or both.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _______, with the Company relating to the
Securities. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:__________________________________
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
such registered owner must be
stated.)
X-0-0
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(iv)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ aggregate Amount
Payable at Maturity of Securities which are evidenced by the Restricted Global
Security (CUSIP No. _________) and held with the Depositary in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will take
delivery thereof in the form of an equal aggregate Amount Payable at Maturity of
Securities evidenced by the Regulation S Global Security (CUSIP No.
_____________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that:
(a) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities
Act"):
(i) the offer of the Securities was not made to a person
in the United States;
(ii) either:
(1) at the time the buy order was originated, the
transferee was outside the United States or
the Transferor and any person acting on its
behalf reasonably believed that the
transferee was outside the United States,
(2) in the case of Rule 903, the transaction was
executed in, on or through a physical trading
floor of an established foreign securities
exchange that is located outside the United
States; or
(3) in the case of Rule 904, the transaction was
executed in, on or through the facilities of
a designated offshore securities market and
neither the Transferor nor any person acting
on its behalf knows that the transaction was
prearranged with a buyer in the United
States;
A-2-1
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(a) of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act; or
(b) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Securities are being transferred in a
transaction permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and Initial Purchasers of the Securities under the
Purchase Agreement, dated _________, with the Company relating to the
Securities. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:__________________________________
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
such registered owner must be
stated.)
A-2-2
ANNEX B
FORM OF TRANSFER CERTIFICATE --
TEMPORARY REGULATION S GLOBAL SECURITY OR
REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(v)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate Amount
Payable at Maturity of Securities which are evidenced by the Temporary
Regulation S Global Security or the Regulation S Global Security (CUSIP No.
_________) and held with the Depositary through Euroclear or Clearstream or both
in the name of [insert name of transferor] (the "Transferor") during the
Restricted Period. The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person that will take delivery thereof in the
form of an equal Amount Payable at Maturity of Securities evidenced by the
Restricted Global Security (CUSIP No. _________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities 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 and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
B-1
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated __________, with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:__________________________________
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
such registered owner must be
stated.)
B-2
ANNEX C-1
FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S
GLOBAL SECURITY TO EUROCLEAR OR CLEARSTREAM
OWNER SECURITIES CERTIFICATION
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
System] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate Amount
Payable at Maturity of Securities which are evidenced by the Temporary
Regulation S Global Security (CUSIP No. _________) and held with the Depositary
through Euroclear or Clearstream or both in the name of [insert name of holder]
(the "Holder").
In respect of such Securities, the Holder does hereby certify that as
of the date hereof, the above-captioned Securities are beneficially owned by
non-U.S. Persons and are not held for purposes of resale directly or indirectly
to a U.S. Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
C-1-1
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers of the
Securities under the Purchase Agreement, dated ________, with the Company
relating to the Securities.
Date:______________, ____1
------------------------------------
[Name of Person Making Certification]
---------------------
1 To be dated no earlier than 15 days prior to the transfer or exchange date to
which the certification relates.
C-1-2
ANNEX C-2
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE
EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING,
SOCIETE ANONYME
DEPOSITARY SECURITIES CERTIFICATION
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the Amount Payable at Maturity set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, as of the date hereof,
$__________ aggregate Amount Payable at Maturity of the above-captioned
Securities are beneficially owned by non-U.S. Persons and are not held for
purposes of resale directly or indirectly to a U.S. Person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Security excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers of the
Securities under the Purchase Agreement, dated _________ ,with the Company
relating to the Securities.
C-2-1
Dated:
By:____________________________________
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear System]
[or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
C-2-2
ANNEX C-3
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
TRANSFEREE SECURITIES CERTIFICATION
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
System] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary
Regulation S Global Security, the undersigned certifies that it is not a U.S.
Person as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you in which we intend to acquire a beneficial interest in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _________, with the Company relating to the
Securities.
Dated:
By:__________________________________
As, or as agent for, the beneficial
acquiror of the Securities to which
this certificate relates.
X-0-0
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(vi)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to $_____________ aggregate Amount Payable at
Maturity of Securities held in definitive form (CUSIP No. _______) by [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such Securities to a Person that will take delivery in the form of an equal
Amount Payable at Maturity of Securities evidenced by the Restricted Global
Security (CUSIP No. ___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities 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 and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated ________, with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:__________________________________
Name:
Title:
X-0-0
XXXXX X-0
FORM OF CERTIFICATE -- NON-GLOBAL
RESTRICTED SECURITY TO REGULATION S GLOBAL
SECURITY OR TEMPORARY REGULATION S
GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(vi)
of the Indenture)
THE BANKOF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to $____________ aggregate Amount Payable at
Maturity of Securities held in definitive form (CUSIP No. _____) by [insert name
of transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities to a Person that will take delivery in the form of
an equal Amount Payable at Maturity of Securities evidenced by the Regulation S
Global Security or the Temporary Regulation S Global Security (CUSIP No.
___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with (A) Rule 903 or Rule 904 under the Securities Act of
1933, as amended (the "Act"), or (B) Rule 144 under the Act, if available, and
accordingly the Transferor does hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(i) the offer of the Securities was not made to a person in the
United States;
(ii) either:
(1) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the
United States,
(2) in the case of Rule 903, the transaction was executed
in, on or through a physical trading floor of an
established foreign securities exchange that is located
outside the United States; or
(3) in the case of Rule 904, the transaction was executed
in, on or through the facilities of a designated
offshore securities market and neither the Transferor
nor any person acting on its behalf
D-2-1
knows that the transaction was prearranged with a buyer in
the United States;
(iii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation
S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Act; and
(v) if such transfer is to occur during the Restricted Period,
upon completion of the transaction, the beneficial interest
being transferred as described above was held with the
Depositary through [Euroclear] [Clearstream]; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant
to the Purchase Agreement, dated ________, between the
Company and the representatives of the several purchasers
named therein; and
(ii) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _________, with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:__________________________________
Name:
Title:
D-2-2
ANNEX E
INSTITUTIONAL ACCREDITED INVESTOR LETTER
Inco Limited
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
[Insert name and address of initial purchasers]
The Bank of New York
Ladies and Gentlemen:
In connection with our proposed purchase of [title of securities]
(collectively, the "Securities") of Inco Limited (the "Issuer"), we confirm
that:
1. We are an "accredited investor" (as defined in Rule 501(a) (1), (2),
(3) or (7) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account, and we 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 Securities, and we are able to
bear the economic risk of our investment.
2. We understand and acknowledge that the Securities have not been
registered under the Securities Act or any other applicable securities law, and
that the Securities may not be offered or sold except as permitted in the
following paragraphs.
We agree that if we should sell any Securities, we will do so only (A)
to the Issuer or any subsidiary thereof, (B) pursuant to an effective
registration statement under the Securities Act, (C) in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) to an institutional accredited
investor (as defined in the indenture governing the Securities (the
"Indenture")) that, prior to such transfer, furnishes to the trustee under the
Indenture a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities (the form of which
letter can be obtained from the trustee) and in an Amount Payable at Maturity of
at least $250,000, or (F) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available) or any other available
exemption from the registration requirements of the Securities Act, and we
further agree to provide to any person purchasing any of the Securities from us
a notice advising such purchaser that resales of the Securities are restricted
as stated herein.
3. We understand that, on any proposed resale of any Securities, we may
be required to furnish to the Issuer and the trustee a legal opinion
satisfactory to them and such certifications and other information as the Issuer
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities purchased by
us will bear a legend to the foregoing effect.
E-1
4. We are acquiring the Securities for investment purposes and not with
a view to distribution thereof or with any present intention of offering or
selling any Securities, except as permitted above.
You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereto to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
By:
Name:
Title:
Date:
Securities to be Purchased:
$__________ Amount Payable at Maturity of the $___Securities
E-2
ANNEX F
FORM OF INSTRUCTION FOR EXCHANGE
(For use prior to the exchange of a Temporary Regulation S
for one or more Restricted Securities.)
EXCHANGE INSTRUCTIONS
INCO LIMITED
[TITLE OF SERIES] (THE "SECURITIES")
Pursuant to Section 305(b)(vii)(2) of the Indenture, dated as of March
7, 2003 (the "Indenture"), between Inco Limited and The Bank of New York, as
Trustee, [Name of Initial Purchaser] hereby requests that U.S.$___________
aggregate Amount Payable at Maturity of the above-captioned Securities held by
you for our account in the Temporary Regulation S Security (CUSIP No. ______)
(as defined in the Indenture) be exchanged for one or more Restricted [Global]
Securities [(CUSIP No. _______)] in the denominations and registered in the
names of the holders requested as set forth below:
Denominations Registered Name
------------- ---------------
------------------------- -------------------------------
------------------------- -------------------------------
------------------------- -------------------------------
------------------------- -------------------------------
Dated:_______________ [Name of Initial Purchaser]
By:________________
F-1
