STUDENT TRANSPORTATION INC. as Issuer AND COMPUTERSHARE TRUST COMPANY OF CANADA as Indenture Trustee INDENTURE Dated as of June 7, 2011 providing for the issue of 6.25% Convertible Subordinated Unsecured Debentures due June 30, 2018
as Issuer
Unsecured Debentures due June 30, 2018
ARTICLE 1 INTERPRETATION |
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1.1 Definitions |
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1.2 Interpretation |
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1.3 Accounting Terms |
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1.4 Headings and Table of Contents |
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1.5 Section and Schedule References |
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1.6 Governing Law |
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1.7 Currency |
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1.8 Non-Business Days |
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1.9 Time |
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1.10 Independence of Covenants |
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1.11 Form of Documents Delivered to Indenture Trustee |
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1.12 Acts of Holders |
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1.13 Interest Payments and Calculations |
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1.14 English Language |
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1.15 Successors and Assigns |
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1.16 Severability Clause |
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1.17 Benefits of Indenture |
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1.18 Schedules |
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1.19 Benefits of Indenture through Indenture Trustee |
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ARTICLE 2 THE DEBENTURES |
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2.1 Limit of Issue and Designation of Debentures |
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2.2 Form and Terms of Debentures |
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2.3 Interest |
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2.4 Prescription |
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2.5 Issue of Debentures |
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2.6 Execution |
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2.7 Certification by Indenture Trustee |
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2.8 Registration of Exchanges |
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2.9 Persons Entitled to Payment |
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2.10 Payment of Principal and Interest on Definitive Debentures |
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2.11 Book-Based System |
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2.12 Payments of Principal and Interest for Book-Entry Only Debentures |
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2.13 Rank and Subordination |
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2.14 Register and Transfer |
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2.15 Additional Amount |
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2.16 Cancellation of Debentures |
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2.17 Mutilated, Lost, Stolen or Destroyed Debentures |
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2.18 Access to Lists of Holders |
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ARTICLE 3 REDEMPTION, REPURCHASE AND CANCELLATION OF DEBENTURES |
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3.1 Optional Redemption of Debentures |
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3.2 Partial Redemption of Debentures |
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3.3 Places of Payment |
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3.4 Notice of Redemption |
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3.5 Debentures Due on Redemption Date |
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3.6 Deposit of Redemption Moneys |
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3.7 Right to Repay the Redemption Amount in Common Shares on Redemption |
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3.8 Purchase of Debentures |
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3.9 Repurchase of Debentures upon a Change of Control |
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3.10 Cancellation of Redeemed, Purchased or Repurchased Debentures |
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ARTICLE 4 CONVERSION |
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4.1 Conversion Right |
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4.2 Completion of Conversion |
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4.3 Fractional Shares |
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4.4 Relating to the Issue of Common Shares |
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ARTICLE 5 MATURITY |
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5.1 Payment of Principal and Interest at Maturity |
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5.2 Right to Repay Principal Amount in Common Shares at Maturity |
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ARTICLE 6 ADJUSTMENTS |
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6.1 Adjustment of Conversion Price |
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6.2 Other Adjustment of Conversion Price |
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6.3 Rules Regarding Calculation of Adjustment of Conversion Price |
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6.4 Certificate as to Adjustment |
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6.5 Notice of Special Matters |
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6.6 Notice of Expiry of Conversion Right |
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6.7 Protection of Trustee |
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ARTICLE 7 COMMON SHARE INTEREST PAYMENT ELECTION |
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7.1 Common Share Interest Payment Election |
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ARTICLE 8 SUBORDINATION OF DEBENTURES |
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8.1 Agreement to Subordinate |
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8.2 Order of Payment |
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8.3 Subrogation of Debentures |
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8.4 No Payment to Debentureholders if Event of Default under the Senior Indebtedness |
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8.5 Payment on Debentures Permitted |
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8.6 Authorization of Debentureholders to Trustee to Effect Subordination |
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8.7 Knowledge of Trustee |
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8.8 Trustee May Hold Senior Indebtedness |
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8.9 Rights of Holders of Senior Indebtedness Not Impaired |
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8.10 Altering the Senior Indebtedness |
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8.11 Additional Indebtedness |
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8.12 Right of Debentureholder to Convert Not Impaired |
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ARTICLE 9 COVENANTS OF THE CORPORATION |
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9.1 Payment of Principal, Premium and Interest |
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9.2 Corporate Existence; Books of Account |
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9.3 Compliance Certificate |
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9.4 Notice of Default |
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9.5 Securities Laws |
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9.6 Reporting |
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9.7 Maintain Listings |
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9.8 Performance of Covenants by Indenture Trustee |
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9.9 Payment of Indenture Trustee’s Remuneration |
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ARTICLE 10 EVENTS OF DEFAULT AND REMEDIES |
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10.1 Events of Default and Enforcement |
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10.2 Notice of Event of Default |
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10.3 Waiver of Declaration |
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10.4 Waiver |
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10.5 Other Remedies |
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10.6 Application of Money Collected |
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10.7 Control by Holders |
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10.8 Limitation on Suits |
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10.9 Collection Suit by Indenture Trustee |
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10.10 Indenture Trustee May File Proofs of Claim |
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10.11 Undertaking for Costs |
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10.12 Delay or Omission Not Waiver |
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10.13 Remedies Cumulative |
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10.14 Judgment Against the Corporation |
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ARTICLE 11 SATISFACTION AND DISCHARGE |
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11.1 Non-Presentation of Debentures |
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11.2 Repayment of Unclaimed Moneys or Common Shares |
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11.3 Discharge |
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ARTICLE 12 THE INDENTURE TRUSTEE |
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12.1 Duties of Indenture Trustee |
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12.2 Employ Agents |
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12.3 Reliance on Evidence of Compliance |
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12.4 Provision of Evidence of Compliance to Indenture Trustee |
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12.5 Contents of Evidence of Compliance |
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12.6 Advice of Experts |
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12.7 Indenture Trustee May Deal in Debentures |
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12.8 Conditions Precedent to Indenture Trustee’s Obligation to Act |
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12.9 Indenture Trustee Not Required to Give Security |
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12.10 Resignation or Removal of Indenture Trustee; Conflict of Interest |
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12.11 Authority to Carry on Business; Resignation |
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12.12 Protection of Indenture Trustee |
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12.13 Additional Representations and Warranties of Indenture Trustee |
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12.14 Third Party Interests |
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12.15 Indenture Trustee Not Bound to Act |
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12.16 Compliance with Privacy Laws |
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ARTICLE 13 MEETINGS OF DEBENTUREHOLDERS |
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13.1 Purposes for Which Meetings May be Called |
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13.2 Call, Notice and Place of Meetings |
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13.3 Proxies |
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13.4 Persons Entitled to Vote at Meetings |
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13.5 Quorum; Action |
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13.6 Determination of Voting Rights; Chairman; Conduct and Adjournment of Meetings |
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13.7 Counting Votes and Recording Action of Meetings |
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13.8 Instruments in Writing |
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13.9 Holdings by the Corporation Disregarded |
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13.10 No Consent |
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ARTICLE 14 AMALGAMATION, CONSOLIDATION, CONVEYANCE, TRANSFER OR LEASE |
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14.1 Amalgamation and Consolidations of Corporation and Conveyances Permitted
Subject to Certain Conditions |
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14.2 Rights and Duties of Successor Corporation |
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14.3 Officer’s Certificate and Opinion of Counsel |
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ARTICLE 15 COMPULSORY ACQUISITION |
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15.1 Definitions |
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15.2 Offer for Debentures |
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15.3 Offerer’s Notice to Dissenting Debentureholders |
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15.4 Delivery of Debenture Certificates |
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15.5 Payment of Consideration to Trustee |
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15.6 Consideration to be held in Trust |
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15.7 Completion of Transfer of Debentures to Offeror |
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15.8 Communication of Offer to the Corporation |
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ARTICLE 16 NOTICES |
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16.1 Notice to Corporation |
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16.2 Notice to Holders |
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16.3 Notice to Indenture Trustee |
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ARTICLE 17 SUPPLEMENTAL INDENTURES AND AMENDMENTS |
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17.1 Supplemental Indentures |
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17.2 Execution of Supplemental Indentures |
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17.3 Effect of Supplemental Indentures |
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17.4 Reference in Debentures to Supplemental Indentures |
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17.5 Prior Approval of Recognized Stock Exchange |
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ARTICLE 18 MISCELLANEOUS PROVISIONS |
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18.1 Acceptance of Trusts |
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18.2 Protection of Trustee |
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18.3 Force Majeure |
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18.4 Rights of Rescission |
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18.5 Counterparts and Formal Date |
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SCHEDULE “B” FORM OF REDEMPTION NOTICE
SCHEDULE “C-1” FORM OF CONVERSION NOTICE
SCHEDULE “C-2” FORM OF MATURITY NOTICE
A. | The Corporation desires to provide for the creation and issue of Convertible Subordinated Unsecured Debentures with the designation of “6.25% Convertible Subordinated Unsecured Debentures due June 30, 2018” (the “Debentures”), all upon the terms and conditions set forth in this Indenture (as hereinafter defined); | |
B. | All necessary acts and proceedings have been done and taken and all necessary resolutions have been passed to authorize the execution and delivery of this Indenture by the Corporation, to make the same effective and binding upon the Corporation, and to make the Debentures, when certified by the Indenture Trustee and issued as provided in this Indenture, valid, binding and legal obligations of the Corporation with the benefit and subject to the terms of this Indenture; | |
C. | All necessary acts and proceedings have been done and taken and all necessary resolutions have been passed to authorize the issuance of the Common Shares (as hereinafter defined) that may be issued upon conversion, redemption or maturity of the Debentures; and | |
D. | The foregoing recitals are made as representations and statements of fact by the Corporation and not by the Indenture Trustee; |
INTERPRETATION
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(a) | the Interest Obligation to which the election relates; |
(b) | the amount of proceeds which the Corporation wishes to raise; |
(c) | the investment banks, brokers or dealers through which the Indenture Trustee shall seek bids to purchase the Common Shares and the conditions of such bids, which may include the minimum number of Common Shares, minimum price per Common Share, timing for closing for bids and such other matters as the Corporation may specify; and |
(d) | that the Indenture Trustee shall either sell on the open market or solicit and accept through the investment banks, brokers or dealers selected by the Corporation only those bids which comply with such notice; |
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(a) | in the aggregate, the greater of: |
(i) | 150% of the aggregate amount or value of dividends paid by the Corporation on the Common Shares in its immediately preceding financial year; and |
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(ii) | 100% of the consolidated net income of the Corporation (before extraordinary items but after dividends payable on all shares ranking prior to or on a parity with the Common Shares with respect to the payment of dividends) for its immediately preceding financial year, determined in accordance with Canadian generally accepted accounting principles, and |
(b) | on a per share basis, 150% of the amount or value of dividends paid by the Corporation per Common Share in its immediately preceding financial year; |
(a) | with respect to a security listed and posted for trading on a stock exchange, the Weighted Average Trading Price of such security on such stock exchange for the 20 consecutive Trading Days immediately preceding such date on the stock exchange on which the greatest volume of trading in the security occurred during such 20 Trading Day period; |
(b) | with respect to a security not listed and posted for trading on a stock exchange but traded in an over-the-counter market, the Weighted Average Trading Price of such security on such over-the-counter market for the 20 consecutive Trading Days immediately preceding such date; |
(c) | with respect to a security not listed and posted for trading on a stock exchange and not traded in an over-the-counter market, the fair market value thereof at such date as determined by the Board of Directors; or |
(d) | for any other security or property, the fair market value thereof at such date as determined by the Board of Directors or an Independent Member of the Investment Dealers Association of Canada selected from time to time by the Board of Directors for such purpose; |
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(a) | Debentures theretofore cancelled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation; |
(b) | Debentures for whose payment, purchase, repurchase or redemption money in the necessary amount has been theretofore deposited with the Indenture Trustee under gratuitous deposit or set aside and segregated in trust by the Corporation (if the Corporation shall act as its own paying agent) for the Holders of such Debentures; provided, however, that if such Debentures are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Indenture Trustee has been made; and |
(c) | Debentures that have been surrendered to the Indenture Trustee pursuant to section 2.16 or in exchange for or in lieu of which other Debentures have been certified and delivered pursuant to this Indenture, other than any such Debentures in respect of which there shall have been presented to the Indenture Trustee proof satisfactory to it that such Debentures are held by a bona fide purchaser in whose hands such Debentures are valid obligations of the Corporation; |
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(a) | Words importing the singular number shall include the plural and vice versa and words importing gender shall include the masculine, feminine and neuter genders. |
(b) | The words “hereto”, “herein”, “hereof”, “hereby”, “hereunder”, and other words of similar import refer to this Indenture as a whole and not to any particular article, section, subsection, paragraph, clause or other part of this Indenture. |
(c) | Except as otherwise provided herein, any reference in this Indenture to any act, statute, regulation, policy statement, instrument, agreement, or section hereof shall be deemed to be a reference to such act, statute, regulation, policy statement, instrument, agreement or section thereof as amended, re-enacted or replaced from time to time. |
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(a) | In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. |
(b) | Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. |
(a) | Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may, alternatively, be embodied in and evidenced by the record of Debentureholders voting in favour thereof, either in person or by proxies duly |
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appointed in writing, at any meeting of Debentureholders duly called and held in accordance with the provisions of Article 13, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such requisite instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Corporation. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act of Holders” or the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and, subject to section 12.1, conclusive in favour of the Indenture Trustee and the Corporation, if made in the manner provided in this section 1.12. The record of any meeting of Debentureholders shall be provided in the manner specified in section 13.7. |
(b) | The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to such notary public or other officer the execution thereof. Where such execution is by a signer acting in a capacity, other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any manner that the Indenture Trustee deems sufficient. |
(c) | If the Corporation or the Indenture Trustee shall solicit from the Debentureholders any Act, the Corporation or the Indenture Trustee, as the case may be, may, at its option, fix in advance a record date for the determination of Debentureholders entitled to take such Act, but the Corporation or the Indenture Trustee, as the case may be, shall have no obligation to do so. Any such record date shall be fixed at the Corporation’s or the Indenture Trustee’s discretion, as the case may be, provided that such record date shall be fixed on a date not more than 60 days prior to the Act. If such a record date is fixed, such Act may be sought or taken before or after the record date, but only the Debentureholders of record at the close of business on such record date shall be deemed to be Debentureholders for the purpose of determining whether Holders of the requisite proportion of Debentures Outstanding have authorized or agreed or consented to such Act, and for that purpose the Debentures Outstanding shall be computed as of such record date. |
(d) | Any Act of the Holder of any Debenture shall bind every future holder of the same Debenture and the Holder of every Debenture issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, suffered or omitted by the Indenture Trustee or the Corporation in reliance thereon, whether or not notation of such action is made upon such Debenture. |
(a) | All interest payments to be made under this Indenture or any Debenture shall be paid without allowance or deduction for deemed re-investment or otherwise, both before and after Maturity and before and after default and/or judgment, if any, until payment of the amount on which such interest is accruing, and, to the extent permitted by Applicable Law, interest will accrue on overdue interest. For the avoidance of doubt, interest on the Debentures shall be calculated as simple interest and shall not compound (other than on overdue interest). |
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(b) | For the purposes of the Interest Act (Canada), if in this Indenture or in any Debenture a rate of interest is or is to be calculated on the basis of a period which is less than a full calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied by the actual number of days in the calendar year for which such calculation is made and divided by 360 days. |
(c) | The rate of interest stipulated in this Indenture or in any Debenture will be calculated using the nominal rate method of calculation, and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re-investment of interest. |
(d) | In calculating interest under this Indenture or under a Debenture for any period, unless otherwise specifically stated, the first day of such period shall be included and the last day of such period shall be excluded. |
Schedule “A” | — | Form of Debenture | ||||
Schedule “B” | — | Form of Redemption Notice | ||||
Schedule “C-1” | — | Form of Conversion Notice | ||||
Schedule “C-2” | — | Form of Maturity Notice |
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THE DEBENTURES
(a) | The Debentures shall be dated as of the Issue Date. The Debentures shall bear interest from and including the Issue Date at the rate of 6.25% per annum (after as well as before Maturity, default and judgment, with interest on overdue interest at the said rate), payable in equal semi-annual instalments in arrears on each Interest Payment Date subject to section 2.3, and the Debentures shall mature on the Maturity Date (unless redeemed or repurchased in accordance with this Indenture). |
(b) | Subject to the Share Redemption Right pursuant to section 3.7(a) and the Share Repayment Right pursuant to section 5.2(a), the principal of the Debentures will be payable on the Maturity Date in lawful money of the United States against surrender thereof by the Holder at the Corporate Trust Office or at such place or places as may be designated by the Corporation for that purpose. |
(c) | The Debentures shall be issued as fully registered Debentures in denominations of $1,000 and integral multiples of $1,000 or as a Global Debenture, shall be redeemable as provided for in Article 3 and shall be convertible as provided for in Article 4. |
(d) | The Debentures and the certificate of the Indenture Trustee endorsed thereon shall be substantially in the form set forth in Schedule “A” hereto, provided that if a Debenture is issued as a Global Debenture in accordance with section 2.11, it shall have appended thereto a principal amount grid in the form of Schedule “A” to the form of Debenture attached as Schedule “A” hereto which shall be appropriately adjusted at such times as Debentures are converted, redeemed or repurchased in accordance with the terms hereof. |
(a) | the following Interest Payment Date; |
(b) | if called for redemption pursuant to section 3.1, the Redemption Date; |
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(c) | if purchased in accordance with section 3.8, the date of payment; |
(d) | if repurchased in accordance with section 3.9, the Payment Date; |
(e) | if converted in accordance with section 4.1, the Conversion Date; and |
(f) | the Maturity Date, |
(a) | The Debentures shall be executed on behalf of the Corporation by any two Responsible Officers of the Corporation. The signature of any of these officers on the Debentures may be manual or facsimile. Debentures bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Debentures. |
(b) | If Debentures are issued as Definitive Debentures, the Corporation shall provide to the Indenture Trustee a supply of certificates to evidence such Definitive Debentures in such form, in such amounts, bearing such distinguishing letters and numbers, and as at such |
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times as are necessary to enable the Indenture Trustee to fulfil its responsibilities under this Indenture. |
(a) | At any time and from time to time after the execution and delivery of this Indenture and in accordance within the terms hereof, the Corporation may deliver Debentures executed on behalf of the Corporation to the Indenture Trustee for certification, pursuant to a Written Order applicable thereto and evidence of compliance, if requested by the Indenture Trustee, in accordance with section 12.4 and Applicable Law. Upon receipt by the Indenture Trustee of a Written Order applicable to such Debentures and such evidence of compliance, the Indenture Trustee shall certify and deliver such Debentures in the manner specified in such Written Order, without receiving any consideration for such certification and delivery. |
(b) | No Holder shall be entitled to any right or benefit under this Indenture with respect to a Debenture, and such Debenture shall not be valid or binding for any purpose, unless such Debenture has been certified by the Indenture Trustee, as evidenced by the manual signature of an authorized officer of the Indenture Trustee. Such certification upon any Debenture shall be conclusive evidence, and the only evidence, that such Debenture has been issued under this Indenture. |
(c) | Debentures bearing the manual signature of an individual who was, at the time that such signature was affixed, an authorized signing officer of the Indenture Trustee, shall be valid and binding on the Indenture Trustee notwithstanding that such individual ceased to be an authorized signing officer of the Indenture Trustee prior to the delivery of such Debentures. |
(d) | The certification by the Indenture Trustee on the Debentures shall not be construed as a representation or warranty by the Indenture Trustee as to the validity of this Indenture or of the Debentures (except in respect of the due certification thereof and any other warranties implied by law) or as to the performance by the Corporation of its obligations under this Indenture and the Indenture Trustee shall in no respect be liable or answerable for the use made of the Debentures or any of them or of the proceeds thereof. |
(a) | Debentures may be exchanged for one or more Debentures in an equal aggregate principal amount upon surrender of the Debentures to be exchanged at the specified office of the Indenture Trustee; provided, however, that each Debenture issued in exchange for such original Debenture shall have a principal amount in an authorized denomination as provided for herein. |
(b) | The Indenture Trustee may make a charge to reimburse itself for any stamp taxes or governmental charges required to be paid and a reasonable charge for their services and a reasonable sum per Debenture created and issued upon any exchange or transfer of Debentures effected by them. Payment of such charges will be made by the Person requesting the exchange or transfer as a condition precedent to such exchange or transfer. |
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(a) | Prior to due presentment for registration of transfer of any Debenture, the Corporation, the Indenture Trustee and any other Person, as the case may be, may treat the Person, as the case may be, in whose name any Debenture is registered in the applicable register (including in the case of a Global Debenture, the Depository or the nominee of such Depository in whose name such Global Debenture is registered) as the absolute and sole owner of such Debenture for all purposes including receiving payment of the principal of, and any premium, if any, interest or other amount on such Debenture, receiving any notice to be given to the Holder of such Debenture, and taking any Act of Holders with respect to such Debenture, whether or not any payment with respect to such Debenture shall be overdue, and none of the Corporation, the Indenture Trustee or any other Person, as the case may be, shall be affected by notice to the contrary. | ||
(b) | Delivery of a Debenture to the Indenture Trustee by or on behalf of the Holder thereof shall, upon payment of such Debenture, be a valid discharge to the Corporation of all obligations evidenced by such Debenture. None of the Corporation, the Indenture Trustee or any other Person shall be bound to inquire into the title of any such Holder. | ||
(c) | In the case of the death of one or more joint registered Holders of a Debenture, the principal of, and premium, if any, interest and any other amounts on such Debenture may be paid to the survivor or survivors of such registered Holders whose receipt of such payment, accompanied by the delivery of such Debenture, shall constitute a valid discharge to the Corporation and the Indenture Trustee. |
(a) | Subject to early redemption, repurchase or conversion pursuant to the terms hereof, as payments in respect of interest on the Definitive Debentures become due, interest payable on the Definitive Debentures on an Interest Payment Date will be payable by the Corporation to the Holders thereof in whose names the Debentures are registered at the close of business on the Regular Interest Record Date with respect to the applicable Interest Payment Date. No later than 12:00 p.m. on the day that is three Business Days preceding each Interest Payment Date, the Corporation shall deliver sufficient funds by way of money order, certified cheque, bank draft or wire transfer to the Indenture Trustee to enable it to forward or cause to be forwarded by prepaid post, to the Holder in whose name any Debenture is registered at the close of business on the Regular Interest Record Date with respect to the applicable Interest Payment Date, at his last address appearing on the relevant register, or in the case of joint Holders, to any (or all) Holder(s) whose name(s) appear(s) on such register, on the Interest Payment Date a cheque for such interest (less any withholding or other tax required by law to be deducted) payable to the order of such Holder or Holders and negotiable at par at any branch in Canada of such bank or banks as may be acceptable to the Indenture Trustee in its absolute discretion. The forwarding of such funds by the Corporation to the Indenture Trustee shall satisfy and discharge the Corporation’s liability for payment of the interest on the Debentures to the extent of the sums represented thereby, plus the amount of any withholding or other tax deducted as aforesaid, unless such cheque is not paid at par on presentation; provided that in the event of the non-receipt of such cheque by the Holder, or the loss or destruction thereof, the Indenture Trustee on being furnished with reasonable evidence of such non-receipt, loss or destruction and indemnity reasonably satisfactory to it shall issue to such Holder a replacement cheque for the amount of such cheque. Notwithstanding the foregoing, if the Corporation is prevented by circumstances beyond |
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its control (including, without limitation, any interruption in mail service) from making payment of any interest due on each Debenture in the manner provided above, the Corporation may make payment of such interest or make such interest available for payment in any other manner acceptable to the Indenture Trustee with the same effect as though payment had been made in the manner provided above. | |||
(b) | If a Debenture or a portion thereof is called or presented for redemption, repurchase or conversion and the Redemption Date, Payment Date or Conversion Date is subsequent to a Regular Interest Record Date but prior to the related Interest Payment Date, interest accrued on such Debenture will be paid upon presentation and surrender of such Debenture to the Corporate Trust Office up to but excluding the Redemption Date, the Payment Date or the Conversion Date. | ||
(c) | Subject to the foregoing provisions of this section, each Debenture delivered upon the transfer of or in exchange for or in lieu of any other Debenture shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Debenture. |
(a) | The Debentures shall be issued as Book-Entry Only Debentures and shall be represented by one or more fully-registered permanent global security certificates in the form of the certificate set out in Schedule “A” hereto together with the legend provided for in section 2.11(b) (the “Global Debenture(s)”). The Global Debenture(s) shall be held by, or on behalf of, the Depository as depository of the Participants in the Book-Based System and shall be registered in the name of “CDS & Co.” (or such other name as the Depository may use from time to time as its nominee for the purposes of the Book-Based System). No Beneficial Holder will receive Definitive Debentures representing their beneficial ownership in Debentures unless the Corporation determines to terminate the Book-Entry Only Debentures. | ||
(b) | The Global Debenture(s) shall bear a legend in substantially the following form subject to modification as required by the Depository: | ||
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO STUDENT TRANSPORTATION INC. (THE “ISSUER”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE” |
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(a) | deliver or cause to be delivered to the office of the Indenture Trustee at the Corporate Trust Office at or before 10:00 a.m. three Business Days before such Interest Payment Date or Maturity Date, a certified cheque for the amount of such payment payable on such Interest Payment Date or Maturity Date, as the case may be, to the order of the Indenture Trustee and negotiable at par, or | ||
(b) | provide to the Indenture Trustee such payment by electronic funds transfer to an account designated by the Indenture Trustee, at or before 10:00 a.m. on the Business Day preceding such Interest Payment Date or Maturity Date, as the case may be, |
(a) | The Corporation shall cause to be kept by and at the principal office of the Indenture Trustee in the City of Toronto, Province of Ontario, a register, and in such other place or places by the Indenture Trustee, if any, as the Corporation with the approval of the Indenture Trustee may designate, branch registers, in which shall be entered the names and latest known addresses of the Debentureholders and the other particulars prescribed by law of the Debentures held by them respectively and all transfers of Debentures. Such registration shall be noted on the Debentures by the Indenture Trustee. No transfer of a Debenture shall be effective as against the Corporation unless made on one of the appropriate registers by the registered Holder or his executors or administrators or other legal representatives or his or their attorney duly appointed by an instrument in writing in form and execution satisfactory to the Indenture Trustee, upon compliance with such requirements as the Indenture Trustee may prescribe, and unless such transfer shall have been duly noted on such Debenture by the Indenture Trustee. | ||
(b) | With respect to Debentures issued as Book-Entry Only Debentures, the Corporation shall cause to be kept by and at the principal office of the Indenture Trustee in the City of |
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Toronto, Province of Ontario, a central register in which shall be entered the name(s) and latest known address(es) of the Holder(s) of each Global Debenture (being the Depository, or its nominee, for such Global Debenture) and the other particulars prescribed by law of the Debentures held by it (them) and all transfers of Debentures. Notwithstanding any other provision of this Indenture, a Global Debenture may not be transferred by the registered holder thereof except through records maintained by CDS or its nominee in the following circumstances or as otherwise specified in a Board Resolution or Written Order: |
(A) | the Global Debenture may be transferred by a Depository to a nominee of such Depository or by a nominee of a Depository to such Depository or to another nominee of such Depository or by a Depository or its nominee to a successor Depository or its nominee; | ||
(B) | the Global Debenture may be transferred at any time after the Depository for such Global Debenture (1) has notified the Corporation that it is unwilling or unable to continue as Depository for such Global Debenture or (2) ceases to be eligible to be a Depository provided that at the time of such transfer the Corporation has not appointed a successor Depository for such Global Debenture; | ||
(C) | the Global Debenture may be transferred at any time after the Corporation has determined, in its sole discretion, to terminate the Book-Based System in respect of such Global Debenture and has communicated such determination to the Indenture Trustee in writing; and | ||
(D) | the Global Debenture may be transferred at any time after the Indenture Trustee has determined that an Event of Default has occurred and is continuing with respect to the Debentures issued as a Global Debenture, provided that at the time of such transfer the Indenture Trustee has not waived the Event of Default pursuant to Article 10. |
(a) | Any payments made by or on behalf of the Corporation under or with respect to the Debentures will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory of Canada or by any authority or agency thereof or therein having power to tax (collectively, “Taxes”), unless the Corporation or any other payor is required to withhold or deduct Taxes by Applicable Law or by the interpretation or administration thereof by the relevant Governmental Authority. If the Corporation is so required to withhold or deduct any amount for or on account of Taxes from any payment made to a Holder under or with respect to the Debentures, the Indenture Trustee will make such withholding or deduction and will remit the full amount withheld or deducted to the relevant Governmental Authority as and when required by Applicable Law and the Corporation will pay to the Indenture Trustee such additional amounts (the “Additional Amounts”) as may be necessary so that the net amount received (including Additional Amounts) by each Holder (other than an Excluded Holder) after such withholding or deduction (including any withholding or deduction required to be made in respect of any Additional Amounts) will not be less than the amount such Holder would have received if |
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such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to any payment to a Holder (an “Excluded Holder”) in respect of a Beneficial Holder who is liable for such Taxes in respect of such Debentures (i) by reason of such Holder or Beneficial Holder being a Person with whom the Corporation is not dealing at arm’s length for the purposes of the Income Tax Act (Canada) at the time of making such payment, (ii) by reason of the existence of any present or former connection between such Holder or Beneficial Holder and Canada or any province or territory thereof other than solely by reason of the Holder’s activity in connection with purchasing the Debentures, the mere holding, deemed holding, use or ownership of the Debentures, or receiving payments under or enforcing any rights in respect of such Debentures as a non-resident or deemed non-resident of Canada or any province or territory thereof, or (iii) by reason of its failure to comply with any certification, identification, information, documentation or other reporting requirement if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to the exemption from, or a reduction in the rate of deduction or withholding of, such Taxes. | |||
(b) | Within 90 days after the date the payment of any Taxes is due pursuant to Applicable Law, the Indenture Trustee will furnish to the Corporation copies of tax receipts evidencing such payment by the Indenture Trustee. | ||
(c) | At least 30 days prior to each date on which any payment under or with respect to the Debentures is due and payable, if the Corporation to its knowledge will be obligated to pay Additional Amounts with respect to such payment, the Corporation will deliver to the Indenture Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Indenture Trustee to pay such Additional Amounts to Holders on the date payment is due. | ||
(d) | Whenever in the Indenture or in any Debenture there is mentioned, in any context, the payment of principal (and premium, if any), Redemption Amount, a purchase price pursuant to an Offer to Purchase, interest or any other amount payable under or with respect to any Debenture, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. | ||
(e) | The Corporation will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each of the Holders for the amount of any Taxes in respect of which any Additional Amounts are payable but not paid by the Corporation including Taxes levied or imposed on the Holder with respect to any indemnity payment, but excluding (i) any Taxes on such Holder’s net income or capital, and (ii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or governmental charge. |
(a) | All Debentures surrendered for payment of the final amount required to be paid thereon or that have been redeemed as contemplated by Article 3, or that have been surrendered to the Indenture Trustee for registration of exchange or transfer, shall be promptly cancelled by the Indenture Trustee on receipt. The Indenture Trustee shall give prompt written notice to the Corporation of the particulars of any Debentures cancelled by it. |
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(b) | The Corporation may, in its discretion at any time, deliver to the Indenture Trustee for cancellation any Debentures which the Corporation has purchased as provided for in this Indenture, and all such Debentures so delivered shall be cancelled by the Indenture Trustee. | ||
(c) | All Debentures which have been cancelled by the Indenture Trustee shall be destroyed by the Indenture Trustee in accordance with its standard practices, and the Indenture Trustee shall furnish to the Corporation a destruction certificate setting forth the numbers and denominations of the Debentures so destroyed. |
(a) | If any Debenture has been mutilated or defaced or has or has been alleged to have been lost, stolen or destroyed, then, on application by the applicable Holder to the Indenture Trustee, the Corporation may, in its discretion, execute, and upon such execution the Indenture Trustee shall certify and deliver, a new Debenture of the same date and amount as the defaced, mutilated, lost, stolen or destroyed Debenture in exchange for and in place of the defaced or mutilated Debenture, and in lieu of and in substitution for the lost, stolen or destroyed Debenture. Notwithstanding the foregoing, no Debenture shall be delivered as a replacement for any Debenture which has been mutilated or defaced otherwise than upon surrender of the mutilated or defaced Debenture, and no Debenture shall be delivered as a replacement for any Debenture which has been lost, stolen or destroyed unless the applicant for the replacement Debenture has furnished to the Corporation and the Indenture Trustee evidence, satisfactory in form and substance to the Corporation and the Indenture Trustee, of its ownership of, and of such loss, theft or destruction of, such Debenture and has provided such a surety bond and indemnity to the Corporation and the Indenture Trustee in amount, form and substance satisfactory to each of them. Any instructions by the Corporation to the Indenture Trustee under this section shall include such indemnity for the protection of the Indenture Trustee as the Indenture Trustee may reasonably require. | ||
(b) | If any mutilated, defaced, lost, stolen or destroyed Debenture has become or is about to become due and payable, the Corporation, in its discretion, may, instead of executing a replacement Debenture, pay to the Holder thereof the full amount outstanding on such mutilated, defaced, lost, stolen or destroyed Debenture. | ||
(c) | Upon the issuance of a replacement Debenture, the Corporation may require the applicant for such replacement Debenture to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to such issuance and any other expenses (including the fees and expenses of the Indenture Trustee and the Corporation) connected with such issuance. | ||
(d) | Each replacement Debenture shall bear a unique serial number and be in a form otherwise identical to the Debenture it replaces and shall be entitled to the benefits of this Indenture to the same extent and in the same manner as the Debenture it replaces. | ||
(e) | Unless the Corporation instructs otherwise, the Indenture Trustee shall, in accordance with its practice, destroy each mutilated or defaced Debenture surrendered to and cancelled by it and in respect of which a replacement Debenture has been delivered or moneys have been paid and shall, as soon as reasonably practicable, furnish to the Corporation a certificate as to such destruction specifying in numerical sequence the serial numbers of the Debentures so destroyed. |
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(a) | The register of Debentureholders maintained by the Indenture Trustee will, during the regular business hours of the Indenture Trustee be open for inspection by the Corporation. | ||
(b) | If any Beneficial Holder or group of Beneficial Holders, or such one or more Holders as may be permitted by Applicable Law (in each case, the “Applicants”) apply to the Indenture Trustee (with a copy to the Corporation), then the Indenture Trustee, after having been funded and indemnified to its reasonable satisfaction by such Applicants for its related costs and expenses, shall afford or shall cause the Corporation to afford the Applicants access during normal business hours to the most recent list of Debentureholders within 10 Business Days after the receipt of such application by the Indenture Trustee. Such list shall be as of a date no more than 10 days (or such other date as may be mandated by Applicable Law) prior to the date of receipt of the Applicants’ request. |
REDEMPTION, REPURCHASE AND CANCELLATION OF DEBENTURES
(a) | The Debentures are not redeemable on or prior to June 30, 2014. The Corporation shall have the right at its option to redeem the Debentures, in whole at any time or in part from time to time, on or after July 1, 2014 and prior to June 30, 2016, on not more than 60 days and not less than 30 days prior notice to the Holders, at a redemption price equal to the principal amount of the Debentures to be redeemed, plus accrued and unpaid interest thereon, if any, up to but excluding the Redemption Date (the “Redemption Amount”), provided that the Weighted Average Trading Price of the Common Shares on a Recognized Stock Exchange for the 20 consecutive Trading Days ending five Trading Days prior to the date on which the Redemption Notice is given (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding the date on which the Redemption Notice is given) is not less than 125% of the Conversion Price. | ||
(b) | On or after June 30, 2016 and prior to the Maturity Date, the Corporation shall have the right at its option to redeem the Debentures, in whole at any time or in part from time to time, on not more than 60 days and not less than 30 days prior notice to the Holders, at the Redemption Amount. | ||
(c) | Concurrently with providing the Redemption Notice, the Corporation shall provide the Indenture Trustee with an Officer’s Certificate setting forth the details of any redemption contemplated by this section 3.1 (including the Current Market Price, the eligibility and interest calculations, if necessary) which the Indenture Trustee may rely upon without any independent obligation to verify the accuracy of information set out therein. |
(a) | If less than all the Outstanding Debentures are to be redeemed pursuant to section 3.1, the Corporation shall, in each such case, at least 15 days before the date upon which the Redemption Notice is to be given, notify the Indenture Trustee by a Written Order of its intention to redeem such Debentures and of the aggregate principal amount of Debentures |
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to be redeemed. At any time prior to the date upon which the Redemption Notice is to be given, the Corporation may revoke such Written Order by delivering a second Written Order to the Indenture Trustee stating that the Corporation no longer intends to make a partial redemption of the Debentures. | |||
(b) | The Debentures to be so redeemed shall: |
(i) | in the case of Book-Entry Only Debentures, be redeemed on a pro rata basis to the nearest multiple of $1,000 in accordance with the principal amount of the Outstanding Debentures; or | ||
(ii) | in the case of Definitive Debentures, be selected by the Indenture Trustee (i) on a pro rata basis to the nearest multiple of $1,000 in accordance with the principal amount of the Debentures registered in the name of each Holder, (ii) by lot in such manner as the Indenture Trustee may deem equitable, or (iii) in such other manner as the Indenture Trustee may deem equitable. |
(c) | Debentures in denominations in excess of $1,000 may be selected and called for redemption in part only (such part being $1,000 or an integral multiple thereof) and, unless the context otherwise requires, references to Debentures in this Article 3 shall be deemed to include any such part of the principal amount of Debentures which shall have been so selected and called for redemption. The Holder of any Debenture called for redemption in part only, upon surrender of such Debenture for payment, shall be entitled to receive, without expense to such Holder, a replacement Debenture for and evidencing the same obligation as the unredeemed part of the Debenture so surrendered, and the Indenture Trustee shall certify and deliver such replacement Debenture upon receipt of the Debenture so surrendered. |
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(a) | Provided that the Corporation is entitled to redeem the Debentures pursuant to section 3.1 and that no Event of Default shall have occurred and be continuing, the Corporation, subject to receiving all applicable regulatory approvals, shall have the right, in respect of a Redemption Date, to elect to satisfy its obligation to pay the Redemption Amount by issuing and delivering to Holders on the Redemption Date, for each $1,000 principal amount of Debentures, that number of fully paid and non-assessable Freely Tradeable Common Shares obtained by dividing such principal amount by 95% of the Current Market Price of the Common Shares on the Redemption Date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding the Redemption Date) (the “Share Redemption Right”). | ||
(b) | The Corporation shall exercise the Share Redemption Right by so specifying in the Redemption Notice not less than 40 days and not more than 60 days prior to the Redemption Date. | ||
(c) | The Corporation’s right to exercise the Share Redemption Right shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date: |
(i) | the Common Shares to be issued on exercise of the Share Redemption Right shall be issued from treasury of the Corporation and shall be fully paid and non-assessable Freely Tradeable Common Shares free from any Security or adverse claim; | ||
(ii) | the listing or quoting of such additional Common Shares on each Recognized Stock Exchange on which the Common Share are then listed; | ||
(iii) | the Corporation being a reporting issuer or equivalent in good standing or equivalent under Applicable Securities Laws in the provinces and territories of Canada in which the Corporation is a reporting issuer; | ||
(iv) | no Event of Default shall have occurred and be continuing; | ||
(v) | the receipt by the Indenture Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and | ||
(vi) | the receipt by the Indenture Trustee of an Opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered |
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pursuant to the terms of this Indenture in payment of the Redemption Amount of the Debentures outstanding, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or no default issued by the relevant securities regulatory authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces and territories where such certificates are not issued. |
If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation shall pay in cash the Redemption Amount that would otherwise have been satisfied in Common Shares, unless such Debentureholder waives the conditions which are not satisfied or extends the time by which the Corporation is to satisfy such conditions. | |||
(d) | In the event that the Corporation exercises its Share Redemption Right, the Corporation shall, on the Redemption Date, deliver or cause to be delivered to the Indenture Trustee, for delivery to and on account of the Holders, certificates representing the Freely Tradeable Common Shares to which such Holders are entitled and a cheque representing accrued and unpaid interest. Upon presentation and surrender of the Debentures by a Holder at the Corporate Trust Office or any other place specified in the Redemption Notice, the Indenture Trustee shall deliver the certificates representing such Common Shares and any such interest payment to the Holder. | ||
(e) | No fractional Common Shares shall be delivered upon the exercise of the Share Redemption Right but, in lieu thereof, if such a fraction shall become owing, the Corporation shall pay to the Indenture Trustee for the account of the Holders, at the time contemplated in section 3.7(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding the Redemption Date). | ||
(f) | A Holder shall be treated as the shareholder of record of the Common Shares issued on due exercise by the Corporation of its Share Redemption Right effective immediately after the close of business on the Redemption Date, and shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including stock dividends and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Indenture Trustee receives the same, it shall hold the same under gratuitous deposit for the benefit of such Holder. | ||
(g) | The Corporation shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof becomes limited) solely for the purpose of issue and delivery upon the exercise of the Share Redemption Right as provided herein, and shall issue to Debentureholders to whom Common Shares will be issued pursuant to the exercise of the Share Redemption Right, such number of Common Shares as shall be issuable in such event. | ||
(h) | The Corporation shall comply with all Applicable Securities Laws regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Share Redemption Right, shall obtain any regulatory approval in respect thereof as may be required pursuant to Applicable Securities Laws and shall cause to be listed and posted for trading such Common Shares on each Recognized Stock Exchange. |
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(i) | If the Corporation elects to satisfy its obligation to pay the Redemption Amount by issuing Common Shares in accordance with this section 3.7 and if the Redemption Amount (or any portion thereof) to which a Holder is entitled is subject to withholding Taxes, the Corporation shall satisfy the payment of such withholding Taxes pursuant to section 2.15. |
(a) | Provided that no Event of Default has occurred and is continuing, the Corporation may purchase all or any of the Debentures in the open market (which shall include purchase from or through an investment dealer or a firm holding membership on a Recognized Stock Exchange) or by tender or by private contract at any price, subject to compliance with Applicable Securities Laws. If an Event of Default has occurred and is continuing, the Corporation may purchase all or any of the Debentures as aforesaid with the exception of by private contract. | ||
(b) | If, upon an invitation for tenders, more Debentures are tendered at the same lowest price than the Corporation is prepared to accept, the Debentures to be purchased by the Corporation will be selected by the Indenture Trustee on a pro rata basis or in such other manner consented to by the TSX (or any other stock exchange on which the Debentures may be listed, if any) which the Indenture Trustee considers appropriate, from the Debentures tendered by each tendering Debentureholder who tendered at such lowest price. The Holder of any Debenture of which a part only is purchased, upon surrender of such Debenture for payment, shall be entitled to receive, without expense to such Holder, a replacement Debenture for and evidencing the same obligation as the unpurchased part of the Debenture so surrendered and the Indenture Trustee shall certify and deliver such replacement Debenture upon receipt of the Debenture so surrendered. The Depository shall make notations on the Global Debenture of the principal amount so purchased. |
(a) | Within 30 days of the occurrence of a Change of Control, the Corporation shall be obligated to offer to purchase all the Debentures then Outstanding. The terms and condition of such obligation are set forth as follows: |
(i) | Within 30 days following the occurrence of a Change of Control, the Corporation shall deliver to the Indenture Trustee a notice in writing stating that there has been a Change of Control and specifying the date on which such Change of Control occurred and the circumstances or events giving rise to such Change of Control together with an offer in writing (the “Offer to Purchase”) to purchase all of the Debentures then Outstanding from the Holders thereof at a price per Debenture equal to 101% of the principal amount thereof together with accrued and unpaid interest thereon (if any) up to but excluding the Payment Date (as defined below) (the “Offer Price”). The Indenture Trustee will promptly thereafter deliver the Offer to Purchase to the Holders of all Debentures then Outstanding at their addresses appearing in the registers of Holders maintained by the Indenture Trustee. | ||
(ii) | The Offer to Purchase shall specify: |
(A) | the Offer Price for the Debentures; |
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(B) | the date (the “Expiry Date”) and time (the “Expiry Time”) on which the Offer to Purchase shall expire, which date and time shall not, unless otherwise required by Applicable Securities Law, be earlier than the close of business on the 35th day and not later than the close of business on the 60th day following the date on which the Offer to Purchase is delivered or mailed by the Corporation to the Indenture Trustee; | ||
(C) | that the Offer to Purchase may be accepted by the Debentureholders by tendering the Debentures so held by them to the Indenture Trustee at the Corporate Trust Office or such other address specified in the notice prior to the Expiry Time together with the acceptance notice (the “Acceptance Notice”) in form and substance acceptable to the Corporation and the Indenture Trustee; | ||
(D) | that Debentureholders may accept the Offer to Purchase in respect of all or a portion (in a minimum amount of $1,000 principal amount and multiples thereof) of their Debentures; | ||
(E) | a date (the “Payment Date”) no later than the third Business Day following the Expiry Date on which the Corporation shall take up and pay for all the Debentures duly tendered in acceptance of the Offer to Purchase; and | ||
(F) | that Holders will be entitled to withdraw their election if the Indenture Trustee receives, not later than the Expiry Time, a facsimile transmission or letter setting forth the name of such Holder, the principal amount of Debentures delivered for purchase and a statement that such Holder is withdrawing his election to have such Debentures purchased. |
If any of the Debentures are in the form of Global Debentures, then the Corporation shall modify such notice to the extent necessary to accord with the applicable procedures at the Book-Based System relating to the purchase of the Book-Entry Only Debentures. | |||
(iii) | The Corporation shall deposit with the Indenture Trustee one Business Day prior to the Payment Date, an amount of money sufficient to pay the aggregate Offer Price in respect of all Debentures duly tendered to the Offer to Purchase (less any Taxes required to be withheld or deducted in accordance with Applicable Law). On the Payment Date, the Corporation shall (A) accept for payment Debentures or portions thereof duly tendered pursuant to the Offer to Purchase, and (B) deliver, or cause to be delivered, to the Indenture Trustee an officer’s certificate specifying the Debentures or portions thereof accepted for payment by the Corporation. The Indenture Trustee will pay the Offer Price to the Holders of the Debentures in the respective amounts to which they are entitled in accordance with the Offer to Purchase as aforesaid. |
(b) | If holders of 90% or more of the aggregate principal amount of Debentures Outstanding on the date the Corporation delivers the Offer to Purchase to the Trustee accept the Offer to Purchase, the Corporation shall have the right (the “90% Redemption Right”), upon written notice (the “90% Redemption Right Notice”) provided to the Trustee within 10 days following the Payment Date, to elect to redeem all the Debentures remaining Outstanding at the Offer Price and on the other terms and conditions provided herein. |
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Upon receipt of such notice by the Indenture Trustee, the Indenture Trustee shall promptly provide written notice to each Holder of Debentures then Outstanding (other than those that have accepted the Offer to Purchase) that: |
(i) | the Corporation has exercised the 90% Redemption Right and is purchasing all Outstanding Debentures effective as at the Payment Date at the Offer Price; | ||
(ii) | such Holder must surrender its Debentures to the Indenture Trustee within 10 days after the sending of such notice; and | ||
(iii) | the rights of such Holder under the terms of the Debentures and this Indenture shall cease effective as of the Payment Date provided the Corporation has, on or before the date on which the Corporation delivers the 90% Redemption Notice to the Indenture Trustee, paid the aggregate Offer Price to, or to the order of, the Indenture Trustee and thereafter such Holder’s Debentures shall not be considered to be Outstanding and such Holder shall not have any rights hereunder except to receive such Offer Price to which such Holder is entitled upon surrender and delivery of such Holder’s Debentures in accordance with the Indenture. |
The Corporation shall, on the Business Day immediately prior to the date the Corporation delivers the 90% Redemption Right Notice, pay to the Indenture Trustee by wire transfer or such other means as may be acceptable to the Indenture Trustee, an amount of money sufficient to pay the aggregate Offer Price in respect of all Debentures to be redeemed pursuant to the 90% Redemption Right (less any Taxes required to be withheld or deducted in accordance with Applicable Law). The Indenture Trustee, on behalf of the Corporation, will pay the Offer Price to the Holders of Debentures in the respective amounts to which they are entitled in accordance with the exercise of the 90% Redemption Right as aforesaid upon surrender and delivery of such Holders’ Debentures. | |||
(c) | The Debentures in respect of which the Corporation has made payment to the Indenture Trustee in accordance with the terms of sections 3.9(a) and 3.9(b) (or the portion thereof tendered in acceptance of the Offer to Purchase) shall thereafter no longer be considered to be Outstanding under this Indenture. The Corporation shall also deposit with the Indenture Trustee a sum of money sufficient to pay any charges or expenses which may be incurred by the Indenture Trustee in connection with the Offer to Purchase and the exercise of the 90% Redemption Right if applicable. All Debentures in respect of which payment of the Offer Price has been so made shall be cancelled by the Indenture Trustee. | ||
(d) | In the event only a portion of the principal amount of a Debenture is tendered by a Holder thereof in acceptance of the Offer to Purchase, the Corporation shall execute and deliver to the Indenture Trustee and the Indenture Trustee shall certify and deliver to the Holder, without charge to such holder, a certificate representing the principal amount of the Debenture not so tendered in acceptance of the Debenture Offer. | ||
(e) | The following provisions shall apply in respect of the occurrence of a Cash Change of Control: |
(i) | In the event of the occurrence of a Cash Change of Control, for purposes of the conversion of Debentures pursuant to this Indenture, the Conversion Price in effect during the period (the “Cash Change of Control Conversion Period”) beginning on the 10th day prior to the effective date of the Change of Control (the |
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“Effective Date”) and ending at the close of business on the 30th day after the date on which the Offer to Purchase in respect of the Cash Change of Control is delivered or mailed to the Indenture Trustee in accordance with section 3.9 (the “Cash Change of Control Conversion Price”) shall be calculated in accordance with the following formula: | |||
CCOCCP = OCP/(1+(CP x (c/t))) where: | |||
CCOCCP is the Cash Change of Control Conversion Price; | |||
OCP = is the Conversion Price in effect on the Effective Date; | |||
CP = 39.4%; | |||
c = the number of days from and including the Effective Date to but excluding the Maturity Date; and | |||
t = the number of days from and including the date hereof to but excluding the Maturity Date. | |||
In the event that the Cash Change of Control Conversion Price calculated in accordance with the formula above is less than any regulatory permitted discount to market price, the Cash Change of Control Conversion Price shall be deemed to be that implied by the maximum permitted discount to market price. | |||
(ii) | Notwithstanding the foregoing, if the Conversion Date of any Debentures occurs during the period beginning on the 10th day prior to the Effective Date and ending at the close of business on the Effective Date, the Holders of such Debentures shall, on conversion of their Debentures, only be entitled to that number of Common Shares resulting from the Cash Change of Control Conversion Price in excess of the number of Common Shares to which they would otherwise have been entitled to (the “Base Shares”) at the Conversion Price that would then have been in effect but for the Cash Change of Control (such excess number of Common Shares being the “Make Whole Premium Shares”) on the Business Day immediately following the Effective Date and, for greater certainty, only if the Change of Control occurs. The Base Shares shall be issued in accordance with the terms of this Indenture applicable to a conversion of Debentures otherwise than during the Cash Change of Control Conversion Period, including without limitation at the then applicable Conversion Price. | ||
(iii) | The Make Whole Premium Shares shall be deemed to have been issued upon conversion of the Debentures on the Business Day immediately following the Effective Date. Article 6 shall apply to such conversion and, for greater certainty, the former Holders of Debentures in respect of which the Make Whole Premium Shares are issuable shall be entitled to receive and shall accept, in lieu of the Make Whole Premium Shares, the number of shares or other securities or property of the Corporation or of the Person or other entity resulting from the transaction that constitutes the Cash Change of Control that such Holders would have been entitled to receive if such Holders had been the registered holders of the applicable number of Make Whole Premium Shares on the Effective Date. |
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(iv) | Except as otherwise provided in this section 3.9(e), all other provisions of this Indenture applicable to a conversion of Debentures shall apply to a conversion of Debentures during the Cash Change of Control Conversion Period. |
(f) | The Corporation will comply with all Applicable Securities Laws in the event that the Corporation is required to repurchase the Debentures pursuant to an Offer to Purchase in connection with a Change of Control and the Corporation’s obligations hereunder shall be subject to the requirements of all Applicable Securities Laws. |
CONVERSION
(a) | Each Holder shall have the right at any time prior to the close of business on the earlier of (i) the Business Day immediately preceding the Maturity Date or, (ii) if called for redemption under section 3.4, the Business Day immediately preceding the Redemption Date or, (iii) if called for repurchase pursuant to section 3.9, the Business Day immediately preceding the Payment Date, at his option to convert each $1,000 principal amount of his Debentures into that number of Common Shares equal to the Conversion Number, all on the terms and subject to the conditions provided in this Article 4, provided that the only shares issuable on conversion of the Debentures shall be shares that are “prescribed securities” as defined in Regulation 6208 of the Income Tax Act (Canada). | ||
(b) | In order to exercise his option to convert provided pursuant to section 4.1(a), a Holder will be required to deliver to the Indenture Trustee at the Corporate Trust Office or any other place specified in the Maturity Notice or the Redemption Notice or the Offer to Purchase, as the case may be, on or prior to the Business Day immediately preceding the Maturity Date, the Redemption Date or the Payment Date, as the case may be, a conversion notice in the form set forth in Schedule “C-1” (the “Conversion Notice”) (with a copy to the Corporation), duly completed and executed by the Holder or his executors or administrators or other legal representatives or his or their attorney duly appointed by instrument in form and execution satisfactory to the Indenture Trustee, together with the related Debentures (or such other documents as the Indenture Trustee may require in lieu thereof). The Conversion Notice shall specify the date of conversion (the “Conversion Date”) of the Debentures, which Conversion Date shall not be earlier than the date the Conversion Notice is delivered to the Indenture Trustee and shall not be later than the close of business on the Business Day immediately preceding the Maturity Date, the Redemption Date or the Payment Date. | ||
(c) | Upon receipt of a Conversion Notice from the Holder, the Corporation shall ensure that the following conditions are met: |
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(i) | the Common Shares to be issued on conversion by the Holder shall be issued from treasury of the Corporation and shall be Freely Tradeable, fully paid and non-assessable Common Shares; | ||
(ii) | the listing or quoting of such additional Common Shares on each Recognized Stock Exchange; | ||
(iii) | the Corporation being a reporting issuer or equivalent in good standing or equivalent under Applicable Securities Laws in the provinces and territories of Canada in which the Corporation is a reporting issuer; | ||
(iv) | no Event of Default shall have occurred and be continuing; and | ||
(v) | the receipt by the Indenture Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures, plus the accrued and unpaid interest thereon, and the calculation of the Conversion Number. |
If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Conversion Date, the Corporation shall pay in cash the Conversion Value of the Debentures in lieu of delivery of the Conversion Number of Common Shares, unless such Debentureholder waives the conditions which are not satisfied or extends the time by which the Corporation is to satisfy such conditions. |
(a) | Subject to section 4.1, within five Business Days of the Conversion Date, the Corporation shall deliver, or have the Transfer Agent deliver, to the Indenture Trustee on account of the Holder for delivery to each Holder who has elected to convert his Debentures pursuant to section 4.1, for each $1,000 principal amount of Debentures which the Holder has elected to convert: (i) certificates for the Common Shares to which the Holder is entitled; (ii) a certified cheque or bank draft in the amount of the value of a fractional Common Share, if any; (iii) a certified cheque or bank draft in the amount of the accrued and unpaid interest thereon, and (iv) if the Holder has elected to convert a principal amount of Debentures, together with the accrued and unpaid interest thereon (the “exercised amount”), which is less than the principal amount of all Debentures of which such person is the Holder immediately prior to such exercise (the “registered amount”), Debenture(s) registered in the name of such Holder in an aggregate principal amount equal to the amount by which the registered amount exceeds the exercised amount. | ||
(b) | All Debentures converted in whole or in part pursuant to this Article 4 shall be forthwith delivered to and cancelled by the Indenture Trustee and the Indenture Trustee shall amend the register maintained by it accordingly. | ||
(c) | The Corporation shall provide or cause to be provided to the Indenture Trustee the certificates for the Common Shares and for the Debentures to be delivered pursuant to section 4.2(a), if any, and pay to the Indenture Trustee sufficient funds, by certified cheque or bank draft, in a timely manner, to permit the Indenture Trustee, on behalf of the Corporation, to make the delivery required by section 4.2(a) and any other payments, if any, required by section 4.3. Except as provided herein, Debentures which have been converted may not be reissued or resold. |
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(a) | A Holder shall be treated as the shareholder of record of the Common Shares issued on due conversion of his Debentures and the issuance of Common Shares shall be deemed to have occurred, for all purposes, effective immediately after the close of business on the Conversion Date; such Holder shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including stock dividends and dividends or distributions in kind) thereon and arising thereafter and in the event that the Indenture Trustee receives the same, it shall hold the same under gratuitous deposit for the benefit of such Holder. | ||
(b) | The Corporation shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited) solely for the purpose of issue and delivery upon the conversion of Debentures, and shall issue to Debentureholders who may exercise their conversion rights hereunder such number of Common Shares as shall be issuable in such events. | ||
(c) | The Corporation shall comply with all Applicable Securities Laws regulating the issue and delivery of Freely Tradeable Common Shares upon conversion of Debentures, shall obtain any regulatory approval in respect thereof as may be required pursuant to Applicable Securities Laws and shall cause to be listed and posted for trading such Common Shares on each Recognized Stock Exchange. |
MATURITY
(a) | The Corporation may, at its option and subject to receiving all applicable regulatory approvals, elect to satisfy its obligation to repay on the Maturity Date the principal amount of all, but not less than all, of the Debentures by delivering to the Holders and the Indenture Trustee not less than 40 days and not more than 60 days prior to the Maturity Date a maturity notice in the form of Schedule “C-2” (the “Maturity Notice”) and, on the Maturity Date, for each $1,000 principal amount of Debentures, by issuing and delivering to Holders that number of fully paid and non-assessable Freely Tradeable Common Shares obtained by dividing each $1,000 principal amount of Debentures by |
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95% of the Current Market Price of the Common Shares on the Maturity Date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding the Maturity Date) (the “Share Repayment Right”). | |||
(b) | The Corporation shall be required to provide the Maturity Notice only if it elects to exercise the Share Repayment Right. | ||
(c) | The Corporation’s right to exercise the Share Repayment Right shall be conditional upon the following conditions being met on the Business Day immediately preceding the Maturity Date: |
(i) | the Common Shares to be issued on exercise of the Share Repayment Right shall be issued from treasury of the Corporation and shall be fully paid and non-assessable Freely Tradeable Common Shares and free from any Security or adverse claim; | ||
(ii) | the listing or quoting of such additional Common Shares on each Recognized Stock Exchange on which the Common Shares are then listed; | ||
(iii) | the Corporation being a reporting issuer or equivalent in good standing or equivalent under Applicable Securities Laws in the provinces and territories of Canada in which the Corporation is a reporting issuer on Maturity; | ||
(iv) | no Event of Default shall have occurred and be continuing; | ||
(v) | the receipt by the Indenture Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of Common Shares on the Maturity Date; and | ||
(vi) | the receipt by the Indenture Trustee of an Opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the principal amount of the Debentures outstanding, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing issued by the relevant securities regulatory authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces and territories where such certificates are not issued. |
If the foregoing conditions are not satisfied by the close of business on the Business Day preceding the Maturity Date, the Corporation shall pay in cash 100% of the principal amount of the Debentures that would otherwise have been satisfied in Common Shares, unless the Debentureholder waives the conditions which are not satisfied or extends the time by which the Corporation is to satisfy such conditions. |
(d) | In the event that the Corporation exercises its Share Repayment Right, the Corporation shall, on the Maturity Date, deliver or cause to be delivered to the Indenture Trustee for delivery to and on account of the Holders, certificates representing the Freely Tradeable Common Shares to which such Holders are entitled and a cheque representing all of the |
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accrued and unpaid interest up to but excluding the Maturity Date. Upon presentation and surrender of the Debentures (or such other documents as the Indenture Trustee may require in lieu thereof) by a Holder for payment at Maturity at the Corporate Trust Office or any other place specified in the Maturity Notice, the Indenture Trustee shall deliver the certificates representing such Common Shares and the cheque representing all the accrued and unpaid interest and the cash equivalent representing the value of fractional shares, if any. | |||
(e) | No fractional Common Shares shall be delivered upon the exercise of the Share Repayment Right but, in lieu thereof, if such a fraction shall become owing, the Corporation shall pay to the Indenture Trustee for the account of the Holders, at the time contemplated in section 5.2(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Maturity Date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding the Maturity Date). | ||
(f) | A Holder shall be treated as the shareholder of record of the Common Shares issued on due exercise by the Corporation of its Share Repayment Right effective immediately after the close of business on the Maturity Date, and shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including stock dividends and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Indenture Trustee receives the same, it shall hold the same under gratuitous deposit for the benefit of such Holder. | ||
(g) | The Corporation shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited) solely for the purpose of issue and delivery upon the exercise of the Share Repayment Right as provided herein, and shall issue to Debentureholders to whom Common Shares will be issued pursuant to the exercise of the Share Repayment Right, such number of Common Shares as shall be issuable in such event. | ||
(h) | The Corporation shall comply with all Applicable Securities Laws regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Share Repayment Right, shall obtain any regulatory approval in respect thereof as may be required pursuant to Applicable Securities Laws and shall cause to be listed and posted for trading such Common Shares on each Recognized Stock Exchange. | ||
(i) | If the Corporation elects to satisfy its obligation to pay the principal amount of the Debentures by issuing Common Shares pursuant to the Share Repayment Right and the delivery of Common Shares to which a Holder is entitled is subject to withholding Taxes, the Corporation shall satisfy the payment of such withholding Taxes pursuant to section 2.15. |
ADJUSTMENTS
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(a) | If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation: |
(i) | subdivides its outstanding Common Shares into a greater number of Common Shares; or | ||
(ii) | reduces, combines or consolidates its outstanding Common Shares into a smaller number of Common Shares; or | ||
(iii) | issues Common Shares or securities convertible into or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a dividend, distribution or otherwise (other than an issue of Common Shares or securities convertible into or exchangeable for Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course); |
(any of such events in clauses (i), (ii) and (iii), being called a “Common Share Reorganization”), then the Conversion Price will be adjusted, effective on the effective date or record date for the happening of a Common Share Reorganization, as the case may be, at which the holders of Common Shares are determined for the purpose of the Common Share Reorganization, so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which will be the total number of Common Shares outstanding on such effective date or record date before giving effect to such Common Share Reorganization and the denominator of which will be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date). | |||
(b) | If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue of rights, options or warrants to the holders of all or substantially all of the outstanding Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”), to subscribe for or purchase Common Shares or securities exchangeable for or convertible into Common Shares at a price per share to the holder (or at an exchange price or conversion price per share during the Rights Period to the holder in the case of securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market Price for the Common Shares on such record date (any of such events being called a “Rights Offering”), then the Conversion Price will be adjusted effective immediately after the end of the Rights Period so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the end of the Rights Period by a fraction: |
(i) | the numerator of which will be the aggregate of: |
(A) | the total number of Common Shares outstanding as of the record date for the commencement of the Rights Offering, and |
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(B) | a number determined by dividing (1) either (x) the product of the number of Common Shares issued or subscribed for during the Rights Period upon the exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Shares are offered for such issue or subscription, or, as the case may be, or (y) the product of the exchange price or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (2) the Current Market Price of the Common Shares as of the record date for the commencement of the Rights Offering, and |
(ii) | the denominator of which will be the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. |
(c) | Any Debentureholder who has exercised the right to convert to Common Shares in accordance with Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the last day of the Rights Period for the Rights Offering will, in addition to the Common Shares to which that holder would otherwise be entitled upon such conversion, be entitled to that number of additional Common Shares equal to the result obtained when the difference, if any, between the Conversion Price in effect immediately prior to the end of such Rights Offering and the Conversion Price as adjusted for such Rights Offering pursuant to this section 6.1(c) is multiplied by the number of Common Shares received upon the conversion of the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this section 6.1(c); provided that the provisions of section 4.3 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this section 6.1(c). Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the expiry thereof, the Conversion Price will be readjusted to the Conversion Price which would then be in effect based on the number of Common Shares (or the securities convertible into or exchangeable for Common Shares) actually delivered on the exercise of such rights, options or warrants. | ||
(d) | If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue or the distribution to the holders of all or substantially all of the outstanding Common Shares of (i) securities of the Corporation, including rights, options or warrants to acquire securities of the Corporation or any of its property or assets and including cash and evidences of Indebtedness; or (ii) any property or other assets, including cash and evidences of Indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization, a Rights Offering or a distribution contemplated by section 6.1(b) (any of such non-excluded events being called a “Special Distribution”), then the Conversion Price will be adjusted effective immediately after such record date so that it shall equal |
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the price determined by multiplying the Conversion Price in effect on such record date by a fraction: |
(i) | the numerator of which will be: |
(A) | the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding such record date); less | ||
(B) | the fair market value (in US Dollars), as determined by action by the Board of Directors (whose determination, subject to the consent of a Recognized Stock Exchange, will be conclusive), to the holders of Common Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and |
(ii) | the denominator of which will be the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding such record date). |
To the extent that any Special Distribution is not so made, the Conversion Price will be readjusted effective immediately to the Conversion Price which would then be in effect based upon such securities or property or other assets as actually distributed. | |||
(e) | If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or change of the Common Shares into other shares or into other securities or other capital reorganization (other than a Common Share Reorganization), or a consolidation, amalgamation or merger of, or an arrangement involving, the Corporation with or into any other corporation or other entity (other than a vertical amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to the Business Corporations Act (Ontario)), or a transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a “Capital Reorganization”), any Holder who exercises the right to convert Debentures into Common Shares pursuant to Debentures then held after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration in lieu of the number of Common Shares to which such Holder was previously entitled upon such conversion, the aggregate number of shares, other securities or other property which such holder would have been entitled to receive as a result of such Capital Reorganization if, on the effective date thereof, the holder had been the registered holder of the number of Common Shares to which such holder was previously entitled upon conversion provided, however, that the consideration into which the Debentures will be convertible will be limited to prescribed securities (as defined by Regulation 6208 to the Income Tax Act (Canada)) of the Corporation as specified by the Board of Directors of the Corporation. The Corporation will take all steps necessary to ensure that, on a Capital Reorganization, the Debentureholders will receive the aggregate number of shares, other securities or other property to which they are entitled as a result of the Capital Reorganization and that such shares or securities will be prescribed |
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securities as defined in Regulation 6208 of the Income Tax Act (Canada), which includes shares or securities not redeemable by the holder thereof within 5 years from the issue date of the Debentures. Appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Article 6 with respect to the rights and interests thereafter of Debentureholders to the end that the provisions set forth in this Article 6 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the Corporation or any such successor, purchasing or transferee corporation or entity, as the case may be, will enter into an indenture supplemental hereto approved by action of the Board of Directors and by the Indenture Trustee, which will set forth an appropriate adjustment to give effect to this section 6.1(e), in which event such adjustment will for all purposes be conclusively deemed to be an appropriate adjustment, subject to the prior written consent of a Recognized Stock Exchange. | |||
(f) | If the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in sections 6.1(b) or 6.1(d) is decreased, the Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under sections 6.1(b) or 6.1(d), as the case may be, with respect to such rights, options or warrants had been made on the basis of the Rights Offering Price as so decreased, provided that the terms of this section 6.1(f) will not apply to any decrease in the Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the extent that the resulting decrease in the Conversion Price under this section 6.1(f) would be greater than the decrease, if any, in the Conversion Price to be made under the terms of this section by virtue of the occurrence of the event giving rise to such decrease in the Rights Offering Price. | ||
(g) | In any case in which this section 6.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event, provided, however, that the Corporation shall deliver to such Holder an appropriate instrument evidencing such Holder’s right to receive such additional Common Shares upon the occurrence of such event and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the date of conversion or such later date on which such Holder would, but for the provisions of this section 6.1(g), have become the holder of record of such additional Common Shares. Such additional Common Shares so issued shall be prescribed securities as defined in Regulation 6208 of the Income Tax Act (Canada). |
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(a) | The adjustments are cumulative and will be computed to the nearest one-tenth of one cent and will be made successively whenever an event referred to therein occurs, subject to the following paragraphs of this section. | ||
(b) | No adjustment in the Conversion Price will be required unless the cumulative effect of such adjustment would result in a change of at least 1% in the prevailing Conversion Price; provided, however, that any adjustments which, except for the provisions of this section 6.3(b) would otherwise have been required to be made, will be carried forward and taken into account in any subsequent adjustment. | ||
(c) | No adjustment in the Conversion Price will be required upon the issuance from time to time of Common Shares pursuant to the Corporation’s stock option plans or share purchase plan, or any dividend reinvestment plan, or any similar plan, if any, as such plans may be replaced, supplemented or further amended from time to time. In addition, for greater certainty, no adjustment in the Conversion Price upon an event referred to in section 6.1(d) will be required upon the distribution from time to time of Common Shares by way of private placement or prospectus which is made to the public in general. | ||
(d) | No adjustment in the Conversion Price will be made in respect of sections 6.1(a)(iii), 6.1(b) or 6.1(d), if Debentureholders are entitled to participate in such event on the same terms, mutatis mutandis, as if they had converted their Debentures prior to or on the effective date or record date of such event. Any such participation will be subject to any required prior consent of a Recognized Stock Exchange. | ||
(e) | If at any time a dispute arises with respect to adjustments provided for in section 6.1, such dispute will be conclusively determined, subject to the consent of a Recognized Stock Exchange, by the Corporation’s auditors, or if they are unable or unwilling to act, by such other firm of independent chartered accountants as may be selected by action of the Board of Directors and any such determination will be binding upon the Corporation, the Indenture Trustee, the Debentureholders and shareholders of the Corporation; such auditors or accountants will be given access to all necessary records of the Corporation. If any such determination is made, the Corporation will deliver an Officer’s Certificate to the Indenture Trustee describing such determination, and the Indenture Trustee shall be entitled to act and rely upon such Officer’s Certificate. | ||
(f) | If the Corporation sets a record date to determine the holders of Common Shares for the purpose of entitling them to receive any dividend or distribution or sets a record date to take any other action and thereafter and before the distribution to such shareholders of any such dividend or distribution or the taking of any other action, legally abandons its plan to pay or deliver such dividend or distribution or take such other action, then no adjustment in the Conversion Price shall be made. | ||
(g) | In the absence of a resolution of the Board of Directors fixing a record date for a Special Distribution or Rights Offering, the Corporation will be deemed to have fixed as the |
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record date therefor the date on which the Special Distribution or Rights Offering is effected. | |||
(h) | For greater certainty, Debentureholders shall have no right to convert Debentures into any security other than Common Shares unless an appropriate adjustment is made by and set forth in an indenture supplemental hereto. |
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COMMON SHARE INTEREST PAYMENT ELECTION
(a) | Provided that no Event of Default has occurred and is continuing under this Indenture and that all applicable regulatory approvals have been obtained (including any required approval of any Recognized Stock Exchange) in respect of any matter relating to this Article 7, the Corporation shall have the irrevocable right, from time to time, to make a Common Share Interest Payment Election in respect of all or any part of any Interest Obligation by delivering a Common Share Interest Payment Election Notice to the Indenture Trustee by no later than the earlier of: (i) the date required by Applicable Law or the rules of any Recognized Stock Exchange on which the Common Shares are then listed, or (ii) the day which is at least 15 Business Days prior to the Interest Payment Date to which the Common Share Interest Payment Election relates. | ||
(b) | Upon receipt of a Common Share Interest Payment Election Notice, the Indenture Trustee shall, provided that all applicable regulatory approvals have been obtained and in accordance with this Article 7 and such Common Share Interest Payment Election Notice, deliver Common Share Bid Requests, in a form to be provided by the Corporation and satisfactory to the Indenture Trustee acting reasonably, to the investment banks, brokers or dealers identified by the Corporation in its absolute discretion to sell Common Shares in the open market on a Recognized Stock Exchange, as specified in the Common Share Interest Payment Election Notice. In connection with the Common Share Interest Payment Election, the Indenture Trustee shall have the power to: (i) accept delivery of the Common Shares from the Corporation and process the Common Shares in accordance with the Common Share Interest Payment Election Notice, (ii) consummate sales of such Common Shares, as the Corporation shall direct in its absolute discretion, through the investment banks, brokers or dealers identified by the Corporation in the Common Share Interest Payment Election Notice, (iii) settle trades of Common Shares in the open market on a Recognized Stock Exchange, (iv) invest the proceeds of such sales on the written direction of the Corporation in Canadian Government Obligations which mature prior to an applicable Interest Payment Date and/or use such proceeds to pay all or part of the Interest Obligation in respect of which the Common Share Interest Payment Election was made, and (v) perform any other action necessarily incidental thereto. | ||
(c) | The Indenture Trustee shall not incur any liability or be in any way responsible for the consequences of any loss caused by the investment referred to in section 7.1(b)(iv) and the Corporation indemnifies and saves harmless the Indenture Trustee and its officers, directors, employees and agents from and against any and all liabilities, losses, costs, claims, actions, expenses or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of performing its obligations set out in section 7.1(b). |
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(d) | The Common Share Interest Payment Election Notice shall provide for, and all bids shall be subject to, the right of the Corporation, by delivering written notice to the Indenture Trustee at any time prior to the consummation of such delivery and sale of the Common Shares on the Common Share Delivery Date, to withdraw the Common Share Interest Payment Election (which shall have the effect of withdrawing each related Common Share Bid Request), whereupon the Corporation shall be obliged to pay in cash the Interest Obligation in respect of which the Common Share Interest Payment Election Notice has been delivered. | ||
(e) | Any sale of Common Shares pursuant to this Article 7 may be made to one or more Persons whose bids are solicited, but all such sales with respect to a particular Common Share Interest Payment Election shall take place concurrently on the Common Share Delivery Date. | ||
(f) | The amount received by a Holder of a Debenture in respect of the Interest Obligation will not be affected by whether or not the Corporation elects to satisfy the Interest Obligation pursuant to a Common Share Interest Payment Election. | ||
(g) | The Indenture Trustee shall inform the Corporation promptly following receipt of any bid or bids for Common Shares solicited pursuant to the Common Share Bid Requests. The Indenture Trustee shall accept such bid or bids as the Corporation (in its absolute discretion) shall direct by Written Order. In connection with any bids so accepted, the Corporation, the Indenture Trustee (if required by the Corporation in its absolute discretion) and the applicable bidders shall, not later than the Common Share Delivery Date, enter into Common Share Purchase Agreements in a form to be provided by the Corporation and satisfactory to the Indenture Trustee acting reasonably, and shall comply with all Applicable Securities Laws, including the securities rules and regulations of any Recognized Stock Exchange on which the Debentures or the Common Shares are then listed. The Corporation shall pay all fees and expenses in connection with the Common Share Purchase Agreements including the fees and commissions charged by the investment banks, brokers and dealers and the standard fees of the Indenture Trustee generally charged for this service. | ||
(h) | Provided that (i) all conditions specified in each Common Share Purchase Agreement to the closing of all sales thereunder have been satisfied, other than the delivery of the Common Shares to be sold thereunder against payment of the purchase price thereof, and (ii) the purchasers under each Common Share Purchase Agreement shall be ready, willing and able to perform thereunder, in each case on the Common Share Delivery Date, the Corporation shall, on the Common Share Delivery Date, deliver to the Indenture Trustee the Common Shares to be sold on such date, an amount in cash equal to the difference between the applicable Interest Obligation and the anticipated net proceeds of the Common Shares to be sold and an Officer’s Certificate, upon which the Indenture Trustee may act and rely absolutely without any further enquiry, to the effect that all conditions precedent to such sales, including those set forth in this Indenture and in each Common Share Purchase Agreement, have been satisfied. Upon such deliveries, the Indenture Trustee shall consummate such sales on such Common Share Delivery Date by the delivery of the Common Shares to such purchasers against payment to the Indenture Trustee in immediately available funds of the purchase price therefor. | ||
(i) | The Indenture Trustee shall, on the Common Share Delivery Date, use the sale proceeds of the Common Shares (together with any cash received from the Corporation) to purchase, on the direction of the Corporation in writing, Canadian Government |
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Obligations which mature at least three Business Days prior to the applicable Interest Payment Date and which the Indenture Trustee is required to hold until maturity (the “Common Share Proceeds Investment”) and shall, on such date, deposit the balance, if any, of such sale proceeds in the Property Account for such Debentures. At least one Business Day prior to the Interest Payment Date, the Indenture Trustee shall deposit amounts from the proceeds of the Common Share Proceeds Investment in the Property Account to bring the balance of the Property Account to the Common Share Interest Payment Election Amount to the extent that the Indenture Trustee has been provided sufficient funds to do so. On the Interest Payment Date, the Indenture Trustee shall pay the funds held in the Property Account (less any tax required to be deducted, if any, and subject to the obligation of the Corporation to pay Additional Amounts in accordance with the terms hereof, if applicable) to the Holders in accordance with section 2.10 or 2.12. The Indenture Trustee shall remit amounts, if any, in respect of income earned on the Common Share Proceeds Investment or otherwise in excess of the Common Share Interest Payment Election Amount to the Corporation. | |||
(j) | Neither the making of a Common Share Interest Payment Election nor the consummation of sales of Common Shares on a Common Share Delivery Date will (i) result in the Holders not being entitled to receive on the applicable Interest Payment Date cash in an aggregate amount equal to the Interest Obligation payable on such date, or (ii) entitle such Holders to receive any Common Shares in satisfaction of such Interest Obligation. | ||
(k) | The Corporation and the Indenture Trustee agree, and shall require each investment bank, broker and dealer participating in the offer and sale of Common Shares pursuant to this Article 7 to agree, that such offers and sales shall only be made outside the United States in compliance with Regulation S under the 1933 Act and, accordingly, that in addition to any other applicable requirements of Regulation S under the 1933 Act, (i) no offer of the Common Shares will be made to a person in the United States, (ii) no directed selling efforts will be made by them, their affiliates or any person acting on any of their behalf in the United States, and (iii) either (A) at the time each buy order for the Common Shares is originated, the buyer will be outside the United States or the seller, its affiliates and any person acting on any of their behalf will reasonably believe that the buyer is outside the United States, or (B) the sale will be made on the TSX or another designated offshore securities market and will not be prearranged with a U.S. buyer. Terms used in this section 7.1(k) shall, unless otherwise defined in this Indenture, have the meanings set forth in Regulation S under the 1933 Act. |
SUBORDINATION OF DEBENTURES
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8.2 | Order of Payment |
(a) | The holders of all Senior Indebtedness will first be entitled to receive payment in full of the principal thereof, premium (or any other amount payable under such Senior Indebtedness), if any, and interest due thereon, before the Debentureholders will be entitled to receive any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable in any such event in respect of any of the Debentures. | ||
(b) | Any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities (other than securities of the Corporation or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article 8 with respect to the Debentures, to the payment of all Senior Indebtedness, provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from such reorganization or readjustment, and (ii) without prejudice to the rights of such holders with respect to any such plan (including without limitation as to whether or not to approve same and on what conditions to do so), the rights of the holders of Senior Indebtedness are not altered adversely by such reorganization or readjustment) to which the Debentureholders or the Indenture Trustee would be entitled, except for the provisions of this Article 8, will be paid or delivered by the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver, a receiver-manager, a liquidator or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, rateably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness. | ||
(c) | Subject to section 8.7, if, notwithstanding the foregoing, any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities (other than securities of the Corporation as reorganized or readjusted or securities of the Corporation or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article 8 with respect to the Debentures, to the payment of all Senior Indebtedness, provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from such reorganization or readjustment and (ii) without prejudice to the rights of such holders with respect to any such plan (including without limitation as to whether or not to approve same and on what conditions to do so), the rights of the holders of Senior Indebtedness are not altered adversely by such reorganization or readjustment), is received by the Indenture Trustee or the Debentureholders before all Senior Indebtedness is paid in full, such payment or |
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distribution will be held in trust for the benefit of, and will be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the Indenture Trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, rateably as aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until such Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness. |
8.3 | Subrogation of Debentures |
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8.4 | No Payment to Debentureholders if Event of Default under the Senior Indebtedness |
(a) | Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise, then, except as hereinafter otherwise provided in section 8.4(c), all principal of and premium or penalty (or any other amounts payable under such Senior Indebtedness), if any, and interest on all such matured Senior Indebtedness shall first be paid in full, or shall first have been duly provided for, before any payment on account of principal of, premium, if any, and interest on the Debentures is made, including the Redemption Price, any amount owed upon a Change of Control or on the Maturity Date. | ||
(b) | Except as hereinafter otherwise provided in section 8.4(c), the Corporation shall not make any payment, and the Debentureholders shall not be entitled to demand, institute proceedings for the collection of, or receive any payment or benefit (including without limitation by compensation, set-off, combination of accounts or realization of security or otherwise in any manner whatsoever) on account of the Indebtedness represented by the Debentures (other than pursuant to section 4.1) (i) in a manner inconsistent with the terms (as they exist on the date hereof) of this Indenture or of the Debentures, or (ii) at any time when a default or an event of default, as defined in any Senior Indebtedness or any instrument evidencing the same and permitting, by the lapse of time or giving of notice, the holders thereof to accelerate the maturity thereof, has occurred under Senior Indebtedness and is continuing and notice of such default or event of default has been given by or on behalf of the holders of Senior Indebtedness to the Corporation, unless and until such Senior Indebtedness have been paid and satisfied in full, or unless and until such default or event of default shall have been cured or waived in writing or shall have ceased to exist in accordance with the provisions of such Senior Indebtedness. | ||
(c) | For greater certainty but without limiting the generality of the foregoing, this section 8.4 shall not be construed so as to prevent the Indenture Trustee from receiving and retaining any payments on account of Debentures which are made (i) in a manner that is consistent with the terms of this Indenture or of the Debentures, and (ii) at any time when no default or event of default (as defined in any Senior Indebtedness or any instrument evidencing the same and permitting, by the lapse of time or giving of notice, the holders thereof to accelerate the maturity thereof) has occurred and is continuing and in respect of which notice has not been given by or on behalf of the holders of Senior Indebtedness to the Corporation. |
8.5 | Payment on Debentures Permitted |
8.6 | Authorization of Debentureholders to Trustee to Effect Subordination |
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8.7 | Knowledge of Trustee |
8.8 | Trustee May Hold Senior Indebtedness |
8.9 | Rights of Holders of Senior Indebtedness Not Impaired |
8.10 | Altering the Senior Indebtedness |
8.11 | Additional Indebtedness |
8.12 | Right of Debentureholder to Convert Not Impaired |
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COVENANTS OF THE CORPORATION
9.1 | Payment of Principal, Premium and Interest |
9.2 | Corporate Existence; Books of Account |
(a) | it will at all times maintain its corporate existence; and | ||
(b) | it will keep or cause to be kept proper books of account in accordance with Canadian generally accepted accounting principles. |
9.3 | Compliance Certificate |
9.4 | Notice of Default |
9.5 | Securities Laws |
(a) | The Corporation covenants and agrees with the Indenture Trustee for the benefit of the Holders that: |
(i) | it will take all reasonable steps and actions and do all such acts and things as may be required to: (A) as long as it meets the minimum listing requirements of such institutions, maintain the listing and posting for trading of the Debentures and the Common Shares on a Recognized Stock Exchange, and (B) maintain its status as a reporting issuer or equivalent in good standing or equivalent under the Applicable Securities Laws in the provinces and territories of Canada in which the Corporation is currently a reporting issuer or equivalent; and | ||
(ii) | it will, at the relevant times and upon exercise of the relevant rights or elections, comply and take all measures reasonably necessary to comply at all times with sections 3.7(c), 4.1(c) and 5.2(c) including, without limitation, make application for any order, ruling, registration or filing or give any notice required under Applicable Securities Laws. |
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(b) | The Indenture Trustee shall have no obligation to verify information relating to the Corporation’s compliance with this section 9.5 and may act and rely upon all information provided by the Corporation with respect to such compliance, without independent inquiry. |
9.6 | Reporting |
9.7 | Maintain Listings |
9.8 | Performance of Covenants by Indenture Trustee |
9.9 | Payment of Indenture Trustee’s Remuneration |
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EVENTS OF DEFAULT AND REMEDIES
10.1 | Events of Default and Enforcement |
(a) | a default in payment of principal (and premium, if any) on any Debentures when due; | ||
(b) | a default in payment of interest on any Debentures when due and payable and the continuance of such default for 30 days; | ||
(c) | a default in the observance of the covenant contained in section 9.5(a) and the continuance of such default for 10 Business Days; | ||
(d) | a default in performing or observing any of the other covenants, agreements or obligations of the Corporation as described herein and the continuance of such default for 60 days after written notice to the Corporation by the Indenture Trustee or by the Holders of not less than 25% in principal amount of Outstanding Debentures requiring the same to be remedied, or such longer period of time as the Indenture Trustee (having regard to the subject matter of neglect or non-observance) shall agree to; | ||
(e) | the failure to make an Offer to Purchase upon a Change of Control; | ||
(f) | a decree, judgment, or order by a court having jurisdiction in the premises shall have been entered adjudging the Corporation bankrupt or insolvent or approving as properly filed a petition seeking reorganization, readjustment, arrangement, composition or similar relief for the Corporation, under the Bankruptcy and Insolvency Act (Canada) or any other bankruptcy, insolvency or analogous applicable law of Canada or any province thereof, and such decree, judgment or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Corporation or of a substantial part of its property, or for the winding up or liquidation of its affairs, shall have remained in force for a period of 60 consecutive days; or any substantial part of the property of the Corporation shall be sequestered or attached and shall not be returned to the possession of the Corporation or released from such attachment, as the case may be, whether by filing of a bond, or stay or otherwise, within 60 consecutive days thereafter; or | ||
(g) | the Corporation shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under the Bankruptcy and Insolvency Act (Canada) or any other bankruptcy, insolvency or analogous applicable law of Canada or any province thereof or shall |
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consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency for it or of a substantial part of its property, or shall make an assignment for the benefit of creditors, or shall be unable, or admit in writing its inability, to pay its debts generally as they become due, or corporate action shall be taken by the Corporation in furtherance of any of the aforesaid actions; |
10.2 | Notice of Event of Default |
10.3 | Waiver of Declaration |
(a) | all overdue interest on all Debentures; | ||
(b) | the principal of (and premium, if any) any of the Debentures which have become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor in such Debentures; and | ||
(c) | to the extent that payment of such interest is lawful and applicable, interest upon overdue instalments of interest at the rate or rates prescribed therefor in such Debentures; and |
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10.4 | Waiver |
(a) | The Holders of not less than 50% in aggregate principal amount of the Outstanding Debentures may on behalf of the Holders of all Debentures waive any past default hereunder and its consequences, except a default: |
(i) | in the payment of the principal of (or premium, if any) or interest on any Debentures; or | ||
(ii) | in respect of a covenant or provision hereof that under Article 17 cannot be modified or amended without an Extraordinary Resolution passed by the Holders. |
(b) | Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon. |
10.5 | Other Remedies |
(a) | If an Event of Default occurs and is continuing, the Indenture Trustee may pursue any available remedy to collect the payment of principal of (and premium, if any) or interest on Debentures or to enforce the performance of any term of the Debentures or this Indenture. | ||
(b) | The Indenture Trustee may maintain a Proceeding even if it does not possess any Debentures or does not produce any of them in the Proceeding. A delay or omission by the Indenture Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. |
10.6 | Application of Money Collected |
(a) | first, to the payment of all amounts due to the Indenture Trustee under this Indenture with respect to such Debentures; | ||
(b) | second, to the payment of accrued interest on such Debentures; | ||
(c) | third, to the payment of the principal of (and premium, if any) on such Debentures; | ||
(d) | fourth, to the payment of any other amounts with respect to such Debentures; and | ||
(e) | fifth, to whomever may be lawfully entitled to receive the balance of such money. |
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10.7 | Control by Holders |
(a) | direct the time, method and place in the Province of Ontario of conducting any Proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred on it with respect to the Debentures; and | ||
(b) | take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of Debentures under any provisions of this Indenture or under Applicable Law. |
10.8 | Limitation on Suits |
(a) | No Holder of any Debenture will have any right to pursue any remedy (including any action, suit or proceeding authorized or permitted by this Indenture or pursuant to Applicable Law) with respect to this Indenture or the Debentures unless: (i) the Holder gives to the Indenture Trustee notice of a continuing Event of Default; (ii) the Holders of at least 25% in principal amount of the then Outstanding Debentures make a request in writing to the Indenture Trustee to pursue the remedy; (iii) such Holder or Holders offer or provide to the Indenture Trustee security and indemnity in form satisfactory to the Indenture Trustee against any loss, liability or expense; (iv) the Indenture Trustee does not comply with the request within 30 days after receipt of such request and indemnity; and (v) during such 30 day period the Holders of a majority in principal amount of Outstanding Debentures do not give the Indenture Trustee a direction inconsistent with the request. | ||
(b) | Holders may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. |
10.9 | Collection Suit by Indenture Trustee |
10.10 | Indenture Trustee May File Proofs of Claim |
10.11 | Undertaking for Costs |
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10.12 | Delay or Omission Not Waiver |
10.13 | Remedies Cumulative |
10.14 | Judgment Against the Corporation |
SATISFACTION AND DISCHARGE
11.1 | Non-Presentation of Debentures |
(a) | the Corporation shall thereafter be entitled to pay or deliver to the Indenture Trustee and direct the Indenture Trustee to set aside, | ||
(b) | in respect of moneys or Common Shares in the hands of the Indenture Trustee which may or should be applied to the payment of the Debentures, the Corporation shall thereafter be entitled to direct the Indenture Trustee to set aside, or | ||
(c) | if the redemption was made pursuant to any Notice given by the Indenture Trustee, the Indenture Trustee may itself thereafter set aside, |
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11.2 | Repayment of Unclaimed Moneys or Common Shares |
11.3 | Discharge |
THE INDENTURE TRUSTEE
12.1 | Duties of Indenture Trustee |
12.2 | Employ Agents |
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12.3 | Reliance on Evidence of Compliance |
12.4 | Provision of Evidence of Compliance to Indenture Trustee |
(a) | the certification pursuant to section 2.7 and delivery of Debentures; | ||
(b) | the satisfaction and discharge of this Indenture; or | ||
(c) | the taking of any other action or step to be taken by the Indenture Trustee at the request, or on the application, of the Corporation. |
12.5 | Contents of Evidence of Compliance |
(a) | a Certificate of the Corporation that the conditions precedent referred to in such Certificate have been complied with in accordance with the terms of this Indenture; | ||
(b) | in the case of conditions precedent compliance with which are, pursuant to this Indenture, made subject to review or examination by Counsel, an Opinion of Counsel to the Corporation that such conditions precedent have been complied with in accordance with the terms of this Indenture; and | ||
(c) | in the case of conditions precedent compliance with which are subject to the review or examination by auditors or appraisers, an opinion or report of a chartered accountant or appraiser, as the case may be, approved by the Indenture Trustee acting reasonably, that such conditions precedent have been complied with in accordance with the terms of this Indenture. |
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12.7 | Indenture Trustee May Deal in Debentures |
12.8 | Conditions Precedent to Indenture Trustee’s Obligation to Act |
(a) | The Indenture Trustee shall not be bound to give any notice, or to do, observe or perform or see to the observance or performance by the Corporation of any of the obligations imposed under the Indenture or to supervise or interfere with any of the activities of the Corporation, or to do or take any act, action or Proceeding by virtue of the powers conferred on it by this Indenture, unless and until it shall have been required to do so under the terms of this Indenture; nor shall the Indenture Trustee be required to take notice of any default or Event of Default, other than in payment of any moneys required by this Indenture to be paid to the Indenture Trustee, unless and until notified in writing of such default or Event of Default by the Corporation or by any Holder, which notice shall distinctly specify default or Event of Default, and in the absence of any such notice the Indenture Trustee may conclusively assume that no default or Event of Default has occurred. Any such notice or requisition shall in no way limit any discretion given to the Indenture Trustee in this Indenture to determine whether or not to take action with respect to any default or Event of Default or with respect to any such requisition. | ||
(b) | The obligation of the Indenture Trustee to do any of the actions referred to in section 12.8(a), including to commence or to continue any Proceeding or any right of the Indenture Trustee or the Holders, shall be conditional upon the Holders furnishing, when required by notice in writing by the Indenture Trustee, sufficient funds to commence or continue such action and an indemnity satisfactory to the Indenture Trustee to protect and hold harmless the Indenture Trustee against the costs, charges, expenses and liabilities which may result from such action and any loss and damage the Indenture Trustee may suffer by reason of such action. | ||
(c) | Before commencing or at any time during the continuance of any Proceeding, the Indenture Trustee may require the Holders on whose behalf it is acting to deposit with the Indenture Trustee the Debentures held by them, and the Indenture Trustee shall issue receipts for such Debentures. |
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12.9 | Indenture Trustee Not Required to Give Security |
12.10 | Resignation or Removal of Indenture Trustee; Conflict of Interest |
(a) | The Indenture Trustee represents and warrants to the Corporation that at the time of the execution and delivery of this Indenture no material conflict of interest exists with respect to the Indenture Trustee’s role as a fiduciary hereunder. | ||
(b) | The Indenture Trustee may resign as trustee hereunder by giving not less than 60 days notice in writing to the Corporation or such shorter notice as the Corporation may accept as sufficient. The Indenture Trustee shall resign if a material conflict of interest arises with respect to its role as trustee under this Indenture that is not eliminated within 90 days after the Indenture Trustee becomes aware of such conflict of interest. Immediately after the Indenture Trustee becomes aware that it has a material conflict of interest it shall provide the Corporation with written notice of the nature of that conflict. Upon any such resignation, the Indenture Trustee shall be discharged from all further duties and liabilities under this Indenture. None of the validity and enforceability of this Indenture or the Debentures shall be affected in any manner whatsoever by reason only of the existence of a material conflict of interest on the part of the Indenture Trustee (whether arising prior to or after the date of this Indenture). If the Indenture Trustee does not comply with this section, any Holder or the Corporation may apply to the Ontario Superior Court of Justice in the judicial district of Toronto for an order that the Indenture Trustee be replaced as trustee under this Indenture. | ||
(c) | In the event of the Indenture Trustee resigning or being removed by the Holders by Extraordinary Resolution or by the Corporation or being dissolved, becoming insolvent or bankrupt, going into liquidation or otherwise becoming incapable of acting as trustee under this Indenture, the Corporation shall immediately appoint a successor Indenture Trustee unless a successor Indenture Trustee has already been appointed by the Holders; failing such appointment by the Corporation, the retiring Indenture Trustee or any other Holder may apply to a judge of the Ontario Superior Court of Justice in the judicial district of Toronto, on such notice as such judge may direct, for the appointment of a successor Indenture Trustee. The successor Indenture Trustee so appointed by the Corporation or by such court shall be subject to removal by the Holders by way of an Act of Holders. Any successor Indenture Trustee appointed under any provision of this section shall be a corporation authorized to carry on the business of a trust corporation in Canada or the Province of Ontario. On any appointment of the successor Indenture Trustee, the successor Indenture Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named in this Indenture as Indenture Trustee. The expenses of all acts, documents and Proceedings required under this section will be paid by the Corporation in the same manner as if the amount thereof were fees payable to the Indenture Trustee under this Indenture. | ||
(d) | Any successor Indenture Trustee shall, immediately upon appointment, become vested with all the estates, properties, rights, powers and trusts of its predecessor in the trusts under this Indenture, with like effect as if originally named as Indenture Trustee hereunder. Nevertheless, upon the written request of the successor Indenture Trustee or of the Corporation and upon payment of all outstanding fees and expenses, including those owed to the Indenture Trustee ceasing to act, the Indenture Trustee ceasing to act |
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shall execute and deliver a document assigning and transferring to such successor Indenture Trustee, upon the trusts expressed in this Indenture, all the rights, powers and trusts of the Indenture Trustee so ceasing to act, and shall duly assign, transfer and deliver all property (including money) held by such Indenture Trustee to the successor Indenture Trustee in its place. Should any deed, conveyance or other document in writing from the Corporation be required by any successor Indenture Trustee for more fully and certainly vesting in and confirming to it such estates, properties, rights, powers and trusts, then any and all such deeds, conveyances and other documents in writing shall, on the request of the successor Indenture Trustee, be made, executed, acknowledged and delivered by the Corporation. |
(e) | Any corporation into which the Indenture Trustee is amalgamated or with which it is consolidated or to which all or substantially all of its corporate trust business is sold or is otherwise transferred or any corporation resulting from any consolidation or amalgamation to which the Indenture Trustee is a party shall be a successor Indenture Trustee under this Indenture, without the execution of any document or any further act; provided that such successor Indenture Trustee is a corporation qualified to carry on the business of a trust corporation in Canada or the Province of Ontario and shall not have a material conflict of interest in its role as a fiduciary under this Indenture. |
12.11 | Authority to Carry on Business; Resignation |
12.12 | Protection of Indenture Trustee |
(a) | the Indenture Trustee shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Debentures (except the representations and warranties contained in sections 2.7(d), 12.1, 12.10(a) and 12.13 which are being given by the Indenture Trustee in its personal capacity) or required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Corporation; | ||
(b) | the Indenture Trustee shall not be bound to give to any Person notice of the execution of this Indenture unless and until an Event of Default and a declaration of acceleration has occurred, and the Indenture Trustee has determined or become obliged to enforce the same; | ||
(c) | the Indenture Trustee shall not incur any liability or be in any way responsible for the consequence of any breach on the part of the Corporation of any of the covenants contained in this Indenture or of any acts of the agents or servants of the Corporation; | ||
(d) | the Corporation indemnifies and saves harmless the Indenture Trustee and its officers, directors and employees and agents from and against any and all liabilities, losses, costs, |
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claims, actions, expenses (including legal fees and disbursements on a solicitor and client basis) or demands whatsoever which may be brought against the Indenture Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and obligations under this Indenture, including those arising out of or related to actions taken or omitted to be taken by the Indenture Trustee contemplated by this Indenture, and including legal fees and disbursements on a solicitor and client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Indenture Trustee may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Indenture Trustee, save only in the event of the gross negligence or the wilful misconduct of the Indenture Trustee. It is understood and agreed that this indemnification shall survive the termination or discharge of this Indenture or the resignation or removal of the Indenture Trustee; |
(e) | without limiting the generality of section 12.12(d), the Corporation will indemnify and hold harmless the Indenture Trustee and upon written request reimburse the Indenture Trustee for the amount of (i) any taxes levied or imposed and paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (ii) any liability (including penalties and interest) arising therefrom or with respect thereto paid by the Indenture Trustee as a result of payments made under or with respect to the Debentures, (iii) any liability (including penalties and interest) arising from a Common Share Interest Payment Election, and (iv) any taxes levied or imposed and paid by the Indenture Trustee with respect to reimbursement under (i), (ii) and (iii) above, but excluding any taxes on the Indenture Trustee’s net income arising from fees for acting as the trustee hereunder or in respect of the Indenture Trustee’s capital. |
(f) | the Indenture Trustee shall not be liable by reason of the statements or implications of fact or law contained in or arising out of anything contained in this Indenture or any Offering Document or in the Debentures or be required to verify the same, but all statements or implications shall be deemed to have been made by the Corporation only; |
(g) | the Indenture Trustee may, in the exercise of all or any of the trusts, powers and discretion vested in it under this Indenture, act by the responsible officers of the Indenture Trustee; the Indenture Trustee may delegate to any Person the performance of any of the trusts and powers vested in it by this Indenture, and any delegation may be made upon such terms and conditions and subject to such regulations as the Indenture Trustee may think to be in the best interest of the Holders; |
(h) | the Indenture Trustee shall not be required to take notice or be deemed to have notice or actual knowledge of any matter under this Indenture, unless the Indenture Trustee shall have received from the Corporation or a Holder written notice stating the matter in respect of which the Indenture Trustee should have notice or actual knowledge; |
(i) | the Indenture Trustee shall not be bound to act in accordance with any direction or request of the Corporation until an executed copy of the document containing the direction or request has been delivered to the Indenture Trustee, and the Indenture Trustee shall be fully empowered to act and shall be fully protected from all liability in acting upon any document purporting to be a Debenture and believed by the Indenture Trustee to be genuine; and |
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(j) | the Indenture Trustee shall not be responsible for any error made or act done by it resulting from reliance upon the signature of any Person on behalf of the Corporation or of any Person on whose signature the Indenture Trustee may be called upon to act or refrain from acting under this Indenture. |
(a) | the Indenture Trustee is a trust corporation validly existing under the laws of its jurisdiction of incorporation; | ||
(b) | the Indenture Trustee has full power, authority and right to execute and deliver and perform its obligations under this Indenture, and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture; and | ||
(c) | this Indenture has been duly executed and delivered by the Indenture Trustee. |
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MEETINGS OF DEBENTUREHOLDERS
(a) | The Indenture Trustee may at any time and from time to time, and shall, on receipt of a Written Request or a requisition in writing made by the Holders of at least 5% in principal amount of the Outstanding Debentures and upon being indemnified and funded to its reasonable satisfaction by the Corporation or upon being funded and indemnified to its reasonable satisfaction by the Holders making such requisition, as the case may be, against the costs which may be incurred in connection with the calling and holding of such meeting, call a meeting of Debentureholders for any purpose specified in section 13.1, to be held at such time and at such place in the City of Toronto, Province of Ontario, as the Indenture Trustee shall determine. Notice of every meeting of Debentureholders, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in section 16.2, not less than 21 or more than 60 days prior to the date fixed for the meeting. | ||
(b) | If at any time the Corporation pursuant to a Board Resolution, or the Holders of at least 5% in principal amount of the Outstanding Debentures shall have requested the Indenture Trustee to call a meeting of the Debentureholders for any purpose specified in section 13.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Indenture Trustee shall not have made the first publication, or mailing, as the case may be, of the notice of such meeting within 30 days after receipt of such request, funding and indemnity or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Corporation or the Debentureholders in the amount above specified, as the case may be, may determine the time and the place in the City of Toronto, Province of Ontario, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in section 13.2(a). |
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(a) | the form of the instrument appointing a proxy, which shall be in writing, and the manner in which the same shall be executed and the production of the authority of any person signing on behalf of a Debentureholder; | ||
(b) | the deposit of instruments appointing proxies at such place as the Indenture Trustee, the Corporation or the Debentureholder convening the meeting, as the case may be, may in the notice convening the meeting, direct and the time, if before the holding of the meeting or any adjournment thereof by which the same must be deposited; and | ||
(c) | the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, faxed, or sent by other electronic communication before the meeting to the Corporation or to the Indenture Trustee at the place where the same is to be held and for the voting of proxies so deposited as though the instruments themselves were produced at the meeting. |
(a) | Persons entitled to vote 25% in principal amount of Outstanding Debentures shall constitute a quorum for a meeting of Debentureholders. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Debentureholders, be dissolved. In the absence of a quorum in any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, the Debentureholders present or represented at such adjourned meeting shall constitute the quorum and the business for which the meeting was adjourned may be transacted. Notice of the reconvening of any adjourned meeting shall be given as provided in section 13.2(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. | ||
(b) | Except as limited by section 17.1(b), any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of Holders of a majority in principal amount of the Debentures present or represented by proxy at such meeting or adjourned meeting; provided, however, that, except as limited by section 17.1(b), any resolution with respect to any Act that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of Outstanding Debentures may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of Outstanding Debentures. |
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(c) | Any resolution passed or decision taken at any meeting of Debentureholders duly held in accordance with this section 13.1 will be binding on all Debentureholders, whether or not present or represented at the meeting. |
(a) | Notwithstanding any other provisions of this Indenture, the Indenture Trustee or the Corporation, with the approval of the Indenture Trustee, may make, and from time to time may vary, such reasonable regulations as it may deem advisable for any meeting of Debentureholders in regard to proof of the holding of Debentures and the appointment of proxies and in regard to the appointment and duties of scrutineers of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted by any such regulations, the holding of Debentures shall be proved in the manner specified in section 1.12 and the appointment of any proxy shall be proved in the manner specified in section 1.12. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in section 1.12 or other proof. | ||
(b) | The Indenture Trustee shall, by an instrument in writing, appoint a chairman and secretary of the meeting, unless the meeting shall have been called by the Corporation or by Debentureholders as provided in section 13.2(b), in which case the Corporation or the Debentureholders calling the meeting, as the case may be, shall in like manner appoint a chairman and secretary. | ||
(c) | At any meeting of Debentureholders, each Holder of a Debenture or proxy shall be entitled to one vote for each one thousand US Dollars ($1,000) principal amount of Debentures held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Debenture challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Debenture or proxy. | ||
(d) | Any meeting of Debentureholders duly called pursuant to section 13.2(b) at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of Outstanding Debentures represented at the meeting; and the meeting may be held as so adjourned without further notice. |
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AMALGAMATION, CONSOLIDATION, CONVEYANCE,
TRANSFER OR LEASE
14.1 | Amalgamation and Consolidations of Corporation and Conveyances Permitted Subject to Certain Conditions |
(a) | either the Corporation shall be the continuing corporation, or the successor corporation (or the Person that leases or that acquires by conveyance, sale or transfer all or substantially all of the Corporation’s assets) (such corporation or Person being referred to as the “Successor Corporation”) is organized or existing under the laws of Canada or any province or territory thereof, or of the United States of America or a state thereof or of the District of Columbia, and shall expressly assume the due and punctual payment of the principal of, the premium, if any, and interest on all Outstanding Debentures, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the Corporation by supplemental indenture satisfactory to the Indenture Trustee, executed and delivered to the Indenture Trustee by such corporation; |
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(b) | the Debentures will be valid and binding obligations of the Successor Corporation entitling the Holders thereof, as against the Successor Corporation, to all the rights of Debentureholders under this Indenture; | ||
(c) | the Corporation or such Successor Corporation, as the case may be, shall not immediately thereafter be in default under this Indenture or the Debentures; | ||
(d) | in the case of a Person constituted or organized under the laws of a province, territory, state or jurisdiction other than the laws of the Province of Ontario, such Person shall attorn to the jurisdiction of the courts of the Province of Ontario in the event of any dispute, conflict or litigation relating to, arising out of or based on this Indenture or the Debentures; and | ||
(e) | no condition or event shall exist as to the Corporation (at the time of such transaction) or the Successor Corporation (immediately after such transaction) and after giving full effect thereto or immediately after the Successor Corporation shall become liable to pay the principal monies, premium, if any, interest and other monies due or which may become due hereunder, which constitutes or would constitute an Event of Default hereunder. |
(a) | In case of any such amalgamation, reorganization, arrangement, conveyance, sale, transfer or lease and upon any such assumption by the Successor Corporation, such Successor Corporation shall agree to be bound by the terms of this Indenture as principal obligor in place of the Corporation, with the same effect as if it had been named herein as the Corporation. Such Successor Corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Corporation, any or all Debentures which theretofore shall not have been signed by the Corporation and delivered to the Indenture Trustee. All Debentures so issued shall in all respects have the same legal rank and benefit under this Indenture as Debentures theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debentures have been issued at the date of the execution hereof. | ||
(b) | In the case of any such amalgamation, reorganization, arrangement, conveyance, sale, transfer or lease, such changes in phraseology and form (but not in substance) may be made in Debentures thereafter to be issued as may be appropriate. |
COMPULSORY ACQUISITION
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(a) | “Affiliate” and “Associate” shall have their respective meanings set forth in the Securities Act (Ontario); | ||
(b) | “Dissenting Debentureholders” means a Debentureholder who does not accept an Offer referred to in section 15.2 and includes any assignee of the Debenture of a Debentureholder to whom such an Offer is made, whether or not such assignee is recognized under this Indenture; | ||
(c) | “Offer” means an offer to acquire outstanding Debentures where, as of the date of the offer to acquire, the Debentures that are subject to the offer to acquire, together with the Offerer’s Debentures, constitute in the aggregate 20% or more of the outstanding principal amount of the Debentures; | ||
(d) | “offer to acquire” includes an acceptance of an offer to sell; | ||
(e) | “Offerer” means a Person, or two or more Persons acting jointly or in concert, who make an Offer to acquire Debentures; | ||
(f) | “Offerer’s Notice” means the notice described in section 15.3; and | ||
(g) | “Offerer’s Debentures” means Debentures beneficially owned, or over which control or direction is exercised, on the date of an Offer by the Offeror, any Affiliate or Associate of the Offeror or any Person or company acting jointly or in concert with the Offeror. |
(a) | within the time provided in the Offer for its acceptance or within 45 days after the date the Offer is made, whichever period is the shorter, the Offer is accepted by Debentureholders holding at least 90% of the outstanding principal amount of the Debentures, other than the Offerer’s Debentures; | ||
(b) | the Offeror has taken up and paid for the Debentures of the Debentureholders who accepted the Offer; and | ||
(c) | the Offeror complies with sections 15.3 and 15.5; |
(a) | Debentureholders holding at least 90% of the principal amount of all outstanding Debentures, other than Offerer’s Debentures, have accepted the Offer; |
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(b) | the Offeror is bound to take up and pay for, or has taken up and paid for, the Debentures of the Debentureholders who accepted the Offer; | ||
(c) | Dissenting Debentureholders must transfer their respective Debentures to the Offeror on the terms on which the Offeror acquired the Debentures of the Debentureholders who accepted the Offer within 21 days after the date of the sending of the Offerer’s Notice; and | ||
(d) | Dissenting Debentureholders must send their respective Debenture certificate(s) to the Indenture Trustee or such other documents as the Indenture Trustee or such other Person may require in lieu thereof within 21 days after the date of the sending of the Offerer’s Notice. |
(a) | do all acts and things and execute and cause to be executed all instruments as in the Indenture Trustee’s opinion may be necessary or desirable to cause the transfer of the Debentures of the Dissenting Debentureholders to the Offeror; | ||
(b) | send to each Dissenting Debentureholder who has complied with section 12.4 the consideration to which such Dissenting Debentureholder is entitled under this Article 15; and | ||
(c) | send to each Dissenting Debentureholder who has not complied with section 15.4 a notice stating that: |
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(i) | his Debentures have been transferred to the Offeror; | ||
(ii) | the Indenture Trustee or some other Person designated in such notice are holding in trust the consideration for such Debentures; and | ||
(iii) | the Indenture Trustee, or such other Person, will send the consideration to such Dissenting Debentureholder as soon as possible after receiving such Dissenting Debentureholder’s Debenture certificate(s) or such other documents as the Indenture Trustee or such other Person may require in lieu thereof; |
NOTICES
Facsimile No.: (000) 000-0000
(a) | Any Notice to Debentureholders may be effectively given if delivered, sent by facsimile transmission (with receipt confirmed), or mailed, in each case at post office address appearing in the relevant register and such Notice shall be deemed to have been received by a Holder, where given by delivery, on the day of delivery, where sent by facsimile transmission (with receipt confirmed) on the day of transmittal of such Notice if sent before 5:00 p.m. on a Business Day, and, where mailed, on the fifth Business Day |
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following the mailing date, but only if sent by first class mail to a destination within Canada, or only by airmail, postage prepaid, if sent to a destination outside Canada. | |||
(b) | If the regular mail service is suspended or for any other reason it shall be impracticable to give Notice to Debentureholders by mail, then such notification to Debentureholders may be given by the publication of the Notice once in a daily newspaper with national circulation in Canada or in any other manner approved by the Indenture Trustee, and it shall constitute sufficient Notice to such Holders for every purpose hereunder. In any case where Notice to Debentureholders 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 Debentureholders. | ||
(c) | Any Notice sent to the Debentureholders as provided above shall be effective notwithstanding that any such Notice has accidentally or inadvertently not been delivered or mailed to one or more such Holders. |
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Facsimile No.: (000) 000-0000
SUPPLEMENTAL INDENTURES AND AMENDMENTS
(a) | Without the consent of any Holders, the Corporation, when authorized by a Board Resolution, and the Indenture Trustee may, subject to the provisions of this Indenture, and the Indenture Trustee shall, upon the receipt of a Written Request or when so directed by this Indenture, make, execute, acknowledge and deliver deeds or indentures supplemental to this Indenture (each such deed or indenture a “Supplemental Indenture”) for any one or more of the following purposes: |
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(i) | adding to the covenants of the Corporation contained in this Indenture for the benefit of the Holders or surrendering any right or power herein conferred upon the Corporation; | ||
(ii) | changing or eliminating any restrictions on the payment of principal, the premium, if any, of Debentures provided that Counsel to the Indenture Trustee shall be of the opinion that such provisions do not individually or in the aggregate adversely affect the interests of the Holders; | ||
(iii) | giving effect to any Extraordinary Resolution in accordance with this Indenture; | ||
(iv) | making such provisions, not substantially inconsistent with this Indenture, as may be necessary or desirable with respect to matters arising under this Indenture which, in the opinion of the Indenture Trustee, are expedient to make; provided that the Indenture Trustee or Counsel to the Indenture Trustee shall be of the opinion that such provisions do not individually or in the aggregate adversely affect the interests of the Holders or the Indenture Trustee; | ||
(v) | without limiting Article 16, evidencing the succession, or successive successions, of any Successor Corporation to the Corporation and the covenants and obligations of the Corporation under this Indenture assumed by any such Successor Corporation in accordance with the terms of this Indenture; | ||
(vi) | providing for altering this Indenture in respect of the exchange or transfer of Debentures, provided that any such action shall not adversely affect the interests of the Debentureholders; | ||
(vii) | making any addition to, or modification, amendment or elimination of any of the terms of, this Indenture which, in the Opinion of Counsel, is necessary or advisable in order to incorporate, reflect or comply with any Applicable Law or requirement of any Governmental Authority, the provisions of which apply to the Corporation, the Indenture Trustee or this Indenture, provided that any such addition to, or modification, amendment or elimination of terms of, this Indenture do not adversely affect the interests of the Holders; | ||
(viii) | making any changes or corrections in this Indenture which Counsel to the Corporation shall have advised the Corporation and the Indenture Trustee are non-substantive corrections or changes or are required for the purpose of curing or correcting any ambiguity or defective or inconsistent provisions or any clerical omission or mistake or manifest error contained in this Indenture or in any deed, or indenture supplemental hereto or thereto; | ||
(ix) | evidencing and providing for the acceptance of appointment hereunder by a successor trustee with respect to the Debentures, and adding to or changing 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 Indenture Trustee; and | ||
(x) | any other purposes considered appropriate by the Indenture Trustee which, in the opinion of the Indenture Trustee, do not individually or in the aggregate adversely affect the interests of the Holders. |
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(b) | With the consent of the Holders of not less than a majority in principal amount of Outstanding Debentures, by Act of Holders delivered to the Corporation and the Indenture Trustee, the Corporation, when authorized by a Board Resolution, and the Indenture 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 said Holders under this Indenture of such Debentures provided, however, that no such Supplemental Indenture shall be entered into by the Indenture Trustee in connection with the following, without an Extraordinary Resolution passed by the Debentureholders: |
(i) | change the Stated Maturity date of the principal of, or any instalment of interest on, any Debenture, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption thereof, or change the currency in which any Debenture or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity date thereof (or, in the case of redemption, on or after the Redemption Date); | ||
(ii) | reduce the percentage in principal amount of the Outstanding Debentures, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or reduce the requirements of section 13.5 for quorum or sections 13.6(a) to 13.6(d) for voting; | ||
(iii) | change the Conversion Price or the method of calculating the number of Additional Shares issuable in the event of a Change of Control under this Indenture; or | ||
(iv) | modify any of the provisions of this section 17.1, or section 10.4(a), 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 Debentureholders expressed by Extraordinary Resolution. |
(c) | It shall not be necessary for any Act of Holders under section 17.1(b) to approve the particular form of any proposed Supplemental Indenture, but it shall be sufficient if such Act of Holders shall approve the substance thereof. | ||
(d) | The obligations, responsibilities, functions, immunities and remuneration of the Indenture Trustee cannot be changed by supplemental indenture, amendment or any other method without the express written permission and assent of the Indenture Trustee to any such change. |
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MISCELLANEOUS PROVISIONS
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(a) | If the prospectus dated May 31, 2011 filed by the Corporation in each of the provinces and territories of Canada to qualify the distribution of the Debentures (the “Prospectus”) contains a misrepresentation (as such term is defined in the Securities Act (Ontario)) and it was a misrepresentation on the date hereof, a purchaser of the Debentures to whom the Prospectus was sent or delivered and who was the original purchaser of the Debentures (collectively, the “Original Purchasers”) shall have a right of action against the Corporation for rescission to receive the subscription price for each Debenture for which such purchaser subscribed exercisable on notice given to the Corporation not more than 180 days subsequent to the date hereof (the “Rescission Period”). The right of action for rescission is only available to an Original Purchaser either while he is a holder of the Debentures purchased or while he is a holder of the Common Shares issued upon conversion of such Debentures during the Rescission Period. | ||
(b) | In no event shall the Corporation be liable under this Section 18.4 if the Original Purchaser purchased the Debentures with knowledge of the misrepresentation. |
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STUDENT TRANSPORTATION INC. |
||||
Per: | /s/ Xxxxx X. Xxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxx | |||
Title: | Chief Executive Officer | |||
COMPUTERSHARE TRUST COMPANY OF CANADA |
||||
Per: | /s/ Xxxxxx Xxxx | |||
Name: | Xxxxxx Xxxx | |||
Title: | Authorized Signatory | |||
Per: | /s/ Xxx Xxxxxx | |||
Name: | Xxx Xxxxxx | |||
Title: | Authorized Signatory | |||
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FORM OF DEBENTURE
No. l | CUSIP 00000XXX0 ISIN CA 86388AAC23 |
(A corporation incorporated pursuant to the laws of the Province of Ontario)
Date of Issue: June l, 2011 | Maturity Date: June 30, 2018 |
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STUDENT TRANSPORTATION INC. |
||||
Per: | ||||
Name: | ||||
Title: | ||||
Per: | ||||
Name: | ||||
Title: |
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COMPUTERSHARE TRUST COMPANY OF CANADA, as trustee |
||||
Per: | ||||
Name: | ||||
Title: | Authorized Signatory |
|||
Date of Certification: |
COMPUTERSHARE TRUST COMPANY OF CANADA, as trustee |
||||
Per: | ||||
Authorized Signatory | ||||
Date | Amount of Increase | Amount of Decrease | New Principal Amount | Maturity Date | Authorization | |||||
Dated:
|
||
Address of Xxxxxxxxxx
|
||
* | If less than the full principal amount of the within Debenture is to be transferred, indicate in the space provided above the principal amount (which must be US$1,000 or an integral multiple thereof) to be transferred. |
Authorized Officer
|
Signature of transferring registered Holder | |
Name of Institution |
||
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FORM OF REDEMPTION NOTICE
DUE JUNE 30, 2018
To: | Holders of 6.25% Convertible Subordinated Unsecured Debentures due June 30, 2018 (the “Debentures”) of Student Transportation Inc. (the “Corporation”) | |
Note: | All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated. |
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
STUDENT TRANSPORTATION INC. |
||||
Per: | ||||
Name: | ||||
Title: |
FORM OF CONVERSION NOTICE
TO:
|
Student Transportation Inc.
0000 Xxxxxxx 000 |
|
Xxxxxxxx X, Xxxxx X | ||
Xxxx XX 00000 | ||
XXX | ||
Attention: Chief Executive Officer | ||
Computershare Trust Company of Canada | ||
000 Xxxxxxxxxx Xxxxxx | ||
9th Floor, North Tower | ||
Toronto, Ontario | ||
M5J 2Y1 | ||
Attention: Manager, Corporate Trust |
Dated:
|
||
(Signature of Registered Holder) |
* | If less than the full principal amount of the Debenture, indicate in the space provided below the principal amount (which must be US$1,000 or integral multiples thereof) to be converted. |
FORM OF MATURITY NOTICE
DUE JUNE 30, 2018
To: | Holders of 6.25% Convertible Subordinated Unsecured Debentures due June 30, 2018 (the “Debentures”) of Student Transportation Inc. (the “Corporation”) | |
Note: | All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated. |
STUDENT TRANSPORTATION INC. |
||||
Per: | ||||
Authorized Signatory | ||||