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BRASCAN CORPORATION
TO
COMPUTERSHARE TRUST COMPANY OF CANADA
Trustee
__________________________________
FIFTH SUPPLEMENTAL
INDENTURE
Dated as of March 4, 2003
__________________________________
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THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of March 4, 2003 between
Brascan Corporation (the "Company"), a corporation amalgamated under the laws of
Ontario, Canada, and Computershare Trust Company of Canada (formerly, Montreal
Trust Company of Canada, the "Trustee"), a trust company duly organized and
existing under the laws of Canada, as trustee, to the Indenture, dated as of
September 20, 1995, between the Company and the Trustee (the "Original
Indenture", the Original Indenture, as supplemented hereby, being referred to
herein as the "Indenture"),
WITNESSETH
WHEREAS, the Company has duly authorized, as a series of Securities
under the Indenture, its 5.75% Senior Notes due March 1, 2010 (the "Notes");
WHEREAS, the Company has duly authorized the execution and delivery of
this Fifth Supplemental Indenture to establish the Notes as a series of
Securities under the Original Indenture and to provide for, among other things,
the issuance of and the form and terms of the Notes and additional covenants for
purposes of the Notes and the Holders thereof;
WHEREAS, the Company is not in default under the Original Indenture;
WHEREAS, all things necessary to make this Fifth Supplemental Indenture
a valid agreement according to its terms have been done; and
WHEREAS, the foregoing recitals are made as statements of fact by the
Company and not by the Trustee;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this Fifth Supplemental Indenture and the Notes,
except as otherwise expressly provided or unless the subject matter or context
otherwise requires:
"ADDITIONAL AMOUNTS" has the meaning specified in Section 211 of this
Fifth Supplemental Indenture.
"ADJUSTED TREASURY RATE" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity
(computed as of the second business day immediately preceding that redemption
date) of the Comparable Treasury Issue, assuming a
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price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that redemption
date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Independent Investment Banker that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any redemption date
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding that redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for that redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (B) if the Independent Investment Banker for the notes obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as at any date of
determination, generally accepted accounting principles in effect in Canada
(unless otherwise indicated) and which are applicable as of the date of
determination.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury
Dealers appointed by us to act as the "Independent Investment Banker".
"NET AVAILABLE PROCEEDS" from any disposition of assets by any Person
means cash or readily marketable cash equivalents (including by way of sale or
discounting of a note, installment receivable or other receivable, but excluding
any other consideration received in the form of assumption by the acquiree of
Debt or other obligations relating to such assets or received in any other
non-cash form) received therefrom by such Person, net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred and
all federal, state, provincial, foreign and local taxes required to be accrued
as a liability as a consequence of such disposition, (ii) all payments made by
such Person or its Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such disposition or by applicable law, be repaid out of the proceeds from
such disposition and (iii) all distributions and other payments made to or set
aside for minority interest holders in Subsidiaries of such Person or joint
ventures as a result of such disposition.
"PRINCIPAL SUBSIDIARY" means (i) any direct or indirect Subsidiary of
the Company whose securities are not publicly traded or registered or qualified
under applicable securities laws and whose primary purpose is to hold, directly
or indirectly, or the majority of whose assets consist of direct or indirect
interests in, shares of capital stock of Noranda Inc., Nexfor Inc., Brookfield
Properties Corporation, Great Lakes Power Inc., or Brascan Financial Corporation
at the date of issuance of the Notes, and (ii) the companies comprising Brascan
Brazil.
"REFERENCE TREASURY DEALER" means each of Credit Suisse First Boston
LLC and its successors and one other nationally recognized investment banking
firm that is a primary U.S.
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Government securities dealer in New York City (a "PRIMARY TREASURY DEALER")
specified from time to time by the Company; provided, however, that if any of
the foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another nationally recognized investment banking firm that
is a Primary Treasury Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by such
Reference Treasury Dealer at 3:30 p.m., New York City time, on the third
business day preceding that redemption date.
"REMAINING SCHEDULED PAYMENTS" means, with respect to each Note to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that, if that redemption date is not an interest
payment date with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to that redemption date.
All other terms and expressions used herein shall have the same
meanings as corresponding expressions defined in the Original Indenture.
SECTION 102. TO BE READ WITH ORIGINAL INDENTURE
The Fifth Supplemental Indenture is a supplemental indenture within the
meaning of the Original Indenture, and the Original Indenture and this Fifth
Supplemental Indenture shall be read together and shall have effect, so far as
practicable, as though all the provisions of the Original Indenture and this
Fifth Supplemental Indenture were contained in one instrument.
ARTICLE 2
THE NOTES
SECTION 201. DESIGNATION
There is hereby authorized to be issued under the Original Indenture a
series of Securities designated as "5.75% Notes due March 1, 2010".
SECTION 202. LIMIT OF AGGREGATE PRINCIPAL AMOUNT
The aggregate principal amount of Notes that may be authenticated and
delivered pursuant to the Fifth Supplemental Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906 or 1107
of the Original Indenture and except for any Notes which, pursuant to the last
sentence of Section 303 of the Original Indenture, are deemed never to have been
authenticated and delivered) shall be limited to US$200,000,000, all of which
have been issued hereunder. The Company may from time to time, without the
consent of the holders of the Notes, create and issue further notes having the
same terms and conditions in all respects as the notes being offered hereby,
except for the issue date, the issue price and the first payment of
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interest thereon. Additional notes issued in this manner will be consolidated
with and will form a single series with the notes, as the case may be, being
offered hereby.
SECTION 203. DATE OF PAYMENT OF PRINCIPAL
The principal of the Notes shall be payable on March 1, 2010.
SECTION 204. PAYMENTS; REGISTRATION OF TRANSFERS
All payments in respect of the Notes shall be made in immediately
available funds.
Notwithstanding the provisions of Section 114 of the Original
Indenture, the Company shall make, or cause to be made, payments on any Interest
Payment Date, Redemption Date, Purchase Date or Stated Maturity whether or not
such date is a Business Day in Xxxxxxx, Xxxxxxx, unless such date shall not be a
Business Day in New York, New York.
For such Securities as are not represented by a Global Security,
payments of principal (and premium, if any) and interest on any Security and the
registration of transfers and exchanges of Securities will be made at the
Corporate Trust Office located at 000 Xxxxxxxxxx Xxxxxx, 9th Floor, North Tower,
Toronto, Ontario, Canada M5J 2Y1 and the office or agency of the Company
maintained for that purpose in each of Toronto, Ontario, and New York, New York,
except that, at the option and expense of the Company, payment of interest may
be made by (a) cheque mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register or (b) wire transfer to an
account maintained by the Person entitled thereto as specified in the Security
Register.
SECTION 205. INTEREST
(1) The Notes shall bear interest at the rate of 5.75% per annum;
provided, that any principal and premium and any installment of interest which
is overdue shall bear interest at the rate of 5.75% per annum plus 1% (to the
extent that the payment of such interest shall be legally enforceable).
(2) Interest in respect of the Notes shall accrue from and including
March 4, 2003 or from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for.
(3) The Interest Payment Dates on which interest shall be payable in
respect of the Notes shall be March 1 and September 1 in each year, commencing
September 1, 2003.
(4) The Regular Record Dates for interest in respect of the Notes
shall be February 15 and August 15 (whether or not a Business Day) in respect of
the interest payable on March 1 and September 1, respectively.
SECTION 206. REDEMPTION
Except as provided in Section 207 and Section 208 of this Fifth
Supplemental Indenture, the Notes are not redeemable prior to maturity.
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SECTION 207. OPTIONAL REDEMPTION
The Notes will be redeemable, in whole or in part, at the Company's
option at any time and from time to time at a redemption price equal to the
greater of:
o 100% of the principal amount of the Notes to be redeemed, and
o the sum of the present values of the Remaining Scheduled Payments
discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate plus 35 basis points.
together with, in each case, accrued interest on the principal amount of the
Notes to be redeemed to the date of redemption.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Notes to be
redeemed. On and after any redemption date, interest will cease to accrue on the
Notes or any portion thereof called for redemption. On or before any redemption
date, the Company shall deposit with the Trustee or with a paying agent money
sufficient to pay the redemption price of and accrued interest on the Notes to
be redeemed on such date. If less than all the Notes are to be redeemed, the
Notes to be redeemed shall be selected by the Trustee at the Company's direction
by such method as the Company and the Trustee shall deem fair and appropriate.
The redemption price shall be calculated by the Independent Investment Banker
and the Company, the Trustee and any paying agent for the Notes shall be
entitled to rely on such calculation.
SECTION 208. REDEMPTION FOR CHANGES IN CANADIAN WITHHOLDING TAXES
The Notes shall be subject to redemption as a whole, but not in part,
at the option of the Company at any time at 100% of the principal amount,
together with accrued interest thereon to the Redemption Date, in the event the
Company shall have received an opinion from independent tax counsel experienced
in such matters to the effect that the Company has become or would become
obligated to pay, on the next date on which any amount would be payable with
respect to the Notes, any Additional Amounts as a result of a change in the laws
of Canada or any political subdivision or taxing authority thereof or therein
(including any regulations promulgated thereunder), or any change in any
official position regarding the application or interpretation of such laws or
regulations, which change is announced or becomes effective on or after the date
of this Fifth Supplemental Indenture.
SECTION 209. FORM
The Notes shall be issuable in whole initially in the form of one or
more Global Securities and shall be substantially in the form set forth in Annex
A hereto. The Depositary for Global Securities shall be The Depository Trust
Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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SECTION 210. ADDITIONAL COVENANTS
The covenants contained in Article 3 of this Fifth Supplemental
Indenture shall apply to the Notes in addition to the covenants contained in the
Original Indenture.
SECTION 211. PAYMENT OF ADDITIONAL AMOUNTS
All payments made by the Company under or with respect to the Notes
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 thereof or by any authority or agency
therein or thereof having power to tax (hereinafter "Taxes"), unless the Company
is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof. If the Company is so required to withhold or deduct any
amount for or on account of Taxes from any payment made under or with respect to
the Notes and the Notes are not redeemed in accordance with the provisions of
Section 208 of this Fifth Supplemental Indenture, the Company will pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by each Holder (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holder would have
received if such Taxes had not been withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder
(an "Excluded Holder") (i) with which the Company does not deal at arm's length
(within the meaning of the Income Tax Act (Canada)) at the time of making such
payment or (ii) which is subject to such Taxes by reason of its being connected
with Canada or any province or territory thereof otherwise than by the mere
holding of Notes or the receipt of payments thereunder. The Company will also
(i) make such withholding or deduction and (ii) remit the full amount deducted
or withheld to the relevant authority in accordance with applicable law. The
Company will furnish to the Holders of the Notes, within 30 days after the date
the payment of any Taxes is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by the Company. The Company will indemnify
and hold harmless each Holder (other than an Excluded Holder) and, upon written
request, will reimburse each such Holder for the amount of (i) any Taxes so
levied or imposed which have not been withheld or deducted and remitted by the
Company in accordance with applicable law and which have been paid by such
Holder in respect of payments made under or with respect to the Notes, (ii) any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto or from the failure to make such payment and (iii) any Taxes
imposed with respect to any reimbursement under clause (i) or (ii) above, but
excluding any such Taxes on such Holder's net income.
At least 30 days prior to each date on which any payment under or with
respect to the Notes is due and payable, if the Company will be obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be payable and the amounts so payable and will set forth such other
information necessary to enable the Trustee to pay such Additional Amounts to
Holders (other than an Excluded Holder) on the payment date. Whenever in the
Indenture there is mentioned, in any context, the payment of principal (and
premium, if any), Redemption Price, Purchase Price, interest or any other amount
payable under or with respect to any Note, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this
Section 211 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
211 and express mention of
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the payment of Additional Amounts (if applicable) in any provisions hereof shall
not be construed as excluding Additional Amounts in those provisions hereof
where such express mention is not made (if applicable).
The obligations of the Company under this Section 211 shall survive the
termination of this Indenture and the payment of all amounts under or with
respect to the Notes.
SECTION 212. DEFEASANCE
The Notes shall be defeasible pursuant to both of Section 1302 and
Section 1303 of the Original Indenture.
In the event the Company exercises its defeasance option with respect
to the Notes pursuant to Section 1302 of the Original Indenture, the Company's
obligations with respect to the Notes under Section 211 of this Fifth
Supplemental Indenture shall survive.
ARTICLE 3
ADDITIONAL COVENANTS APPLICABLE TO THE NOTES
SECTION 301. NEGATIVE PLEDGE
The Company will not, and will not permit any Principal Subsidiary to,
create any Lien on any of its property or assets to secure any indebtedness for
borrowed money without in any such case effectively providing that the Notes
(together with, if the Company shall so determine, any other indebtedness of the
Company or such Principal Subsidiary then existing or thereafter created which
is not subordinate to the Notes) shall be secured equally and ratably with (or
prior to) such secured indebtedness, so long as such secured indebtedness shall
be so secured; provided, however, that the foregoing restrictions shall not
apply to:
(a) Liens on any property or assets of any Person existing at the
time such Person becomes a Principal Subsidiary, or arising
thereafter pursuant to contractual commitments entered into prior
to and not in contemplation of such Person becoming a Principal
Subsidiary;
(b) Liens on any property or assets of the Company or any Principal
Subsidiary existing at the time of acquisition thereof (including
acquisition through merger or consolidation) to secure, or
securing, the payment of all or any part of the purchase price,
cost of improvement or construction cost thereof or securing any
indebtedness incurred prior to, at the time of or within 120 days
after, the acquisition of such property or assets or the
completion of any such improvement or construction, whichever is
later, for the purpose of financing all or any part of the
purchase price, cost of improvement or construction cost thereof
or to secure or securing the repayment of money borrowed to pay,
in whole or in part, such purchase price, cost of improvement or
construction cost or any vendor's privilege or lien on such
property securing all or any part of such purchase price, cost of
improvement or construction cost, including title retention
agreements and leases in the nature of title retention agreements
(provided such Liens are limited to such property or assets and
to improvements on such property);
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(c) Liens arising by operation of law;
(d) any other Lien arising in connection with indebtedness of the
Company and Principal Subsidiaries if, after giving effect to
such Lien and any other Lien created pursuant to this clause (d),
the aggregate principal amount of indebtedness secured thereby
would not exceed 5% of the Company's Consolidated Net Worth; and
(e) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements),
as a whole or in part, of any of the Liens referred to in
paragraphs (a) through (c) above or any indebtedness secured
thereby; provided that such extension, renewal, substitution or
replacement Lien shall be limited to all or any part of
substantially the same property or assets that secured the Lien
extended, renewed, substituted or replaced (plus improvements on
such property) and the principal amount of indebtedness secured
by such Lien at such time is not increased.
SECTION 302. LIMITATION ON CERTAIN ASSET DISPOSITIONS
(i) The Company will not, and will not permit any Principal Subsidiary
to, make any disposition of assets in one or more related transactions in which
the aggregate consideration exceeds, within a twelve-month calendar period, 10%
of the Consolidated Net Worth of the Company unless (a) the Company or the
Principal Subsidiary, as the case may be, receives consideration for such
disposition at least equal to the fair market value of the assets sold or
disposed of as determined by the Board of Directors in good faith and evidenced
by a resolution of the Board of Directors filed with the Trustee and (b) all Net
Available Proceeds, less any amounts invested within one year of such
disposition in assets related to the business of the Company or in securities of
Affiliates (such amount being the "Excess Proceeds"), are applied within one
year of such disposition (i) first, at the option of the Company, to the
repayment or reduction of Debt ranking pari passu with the Notes, (ii) second,
to the extent of remaining Excess Proceeds, after giving effect to payments made
pursuant to clause (i), if any, to make an Offer to Purchase outstanding Notes,
on a pro rata basis, at a purchase price equal to 100% of the principal amount
of Notes, plus accrued interest (if any) to the date of purchase and (iii)
third, to the extent of any remaining Excess Proceeds following the completion
of such Offer to Purchase, to any other use as determined by the Company which
is not otherwise prohibited by the Indenture.
Notwithstanding the foregoing, the Company will not be required to
repurchase more than 25% of the original principal amount of the Notes pursuant
to clause (ii) of the foregoing paragraph prior to the day following the fifth
anniversary of the original issuance of the Notes, and the maximum amount to be
applied to the repurchase of Notes in connection with any Offer to Purchase made
pursuant to clause (ii) of the foregoing paragraph having a purchase date prior
to the day following the fifth anniversary of the original issuance of the Notes
shall be the lesser of (a) the Excess Proceeds and (b) 25% of the original
principal amount of the Notes less the aggregate principal amount of Notes
purchased pursuant to Offers to Purchase relating to all prior asset
dispositions. In addition, the Company shall not be required to make an Offer to
Purchase any Notes if (i) the amount of the Excess Proceeds, or such lesser
amount as determined in accordance with the preceding sentence, is less than
US$5 million or (ii) such repurchase or repayment is prohibited under applicable
law.
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(ii) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Notes or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust),
as provided in Section 1003 of the Original Indenture, money sufficient to pay
the Purchase Price of all Notes or portions thereof so accepted and (iii)
deliver, or cause to be delivered, to the Trustee all Notes so accepted together
with an Officers' Certificate stating the Notes or portions thereof accepted for
payment by the Company. The Paying Agent (or the Company if so acting) shall
promptly mail or deliver to Holders of Notes so accepted payment in an amount
equal to the Purchase Price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Note or Notes equal in principal amount to
any unpurchased portion of the Note surrendered as requested by the Holder. Any
Note not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or, as soon as practicable, after the Purchase Date.
SECTION 303. LIMITATION ON RESTRICTED PAYMENTS
The Company (a) will not declare or pay any dividend, or make any
distribution, of any kind or character (whether in cash, property or
securities), in respect of any class of its Capital Stock or to the holders of
any class of its Capital Stock (other than dividends or distributions payable
solely in shares of its Capital Stock or in options, warrants or other rights to
acquire its Capital Stock), (b) will not, and will not permit any Subsidiary of
the Company to, directly or indirectly, purchase, redeem or otherwise acquire or
retire for value (i) any Capital Stock of the Company or (ii) any options,
warrants or rights to purchase or acquire shares of Capital Stock of the Company
and (c) will not, and will not permit any Subsidiary of the Company to, redeem,
defease (including, but not limited to, legal or covenant defeasance),
repurchase (including pursuant to any provision for repayment at the option of
the holder thereof), retire or otherwise acquire or retire for value prior to
any scheduled maturity, mandatory repayment or mandatory sinking fund payment,
Debt of the Company which is subordinate in right of payment to the Notes if, at
the time thereof:
(i) an Event of Default or an event that, with the lapse of time or
the giving of notice or both, would constitute an Event of
Default shall have occurred and be continuing, or
(ii) upon giving effect to such payment, the Consolidated Net Worth of
the Company would be less than $2 billion;
provided, however, that this provision will not be violated by reason of (i) the
payment of any dividend within 60 days after declaration thereof, if at the date
of such declaration, such payment would have complied with the foregoing
provision and (ii) any refinancing or refunding of any Debt.
SECTION 304. PROHIBITION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING PRINCIPAL SUBSIDIARIES
The Company will not, and will not permit any Principal Subsidiary to,
create or suffer to exist any consensual encumbrance or restriction on the
ability of any Principal Subsidiary (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock or pay
any Debt or other obligation owed to the Company or any Principal Subsidiary,
(ii)
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to make loans or advances to the Company or any Principal Subsidiary or (iii) to
transfer any of its property or assets to the Company or any Principal
Subsidiary.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the day and year first above
written.
BRASCAN CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice-President, Finance
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice-President and
Chief Financial Officer
COMPUTERSHARE TRUST COMPANY OF CANADA
By: /s/ C. Xxxx Xxxxxx
-------------------------------------
Name: C. Xxxx Xxxxxx
Title: Professional, Client Services
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Professional, Client Services
ANNEX A
[Face of Note]
[Insert if the Security is a Global Security -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company ("DTC"), a New York corporation, to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
BRASCAN CORPORATION
5.75% Notes Due March 1, 2010
CUSIP: 10549P AF 8
No. I-[-] US $[-]
Brascan Corporation, a corporation amalgamated under the laws of Ontario, Canada
(herein called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to [-], or registered assigns, the principal sum of [-]/([-]) US Dollars on
March 1, 2010 and to pay interest thereon from and including March 4, 2003 or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on March 1 and September 1 in each
year, commencing September 1, 2003 at the rate of 5.75% per annum, until the
principal hereof is paid or made available for payment, provided that any
principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of 5.75% per annum plus 1% (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be February 15 or August 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this
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Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Xxxxxxx, Xxxxxxx, and at any other office or agency maintained by the
Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debt; provided, however, that, at the option and expense of the Company,
payment of interest may be made by (i) cheque mailed to the address of the
Person entitled thereto as such shall appear in the Security Register or (ii) by
wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall, for all purposes,
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by mutual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
BRASCAN CORPORATION
By:
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Name:
Title:
By:
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Name:
Title:
Attest:
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Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Computershare Trust Company of Canada
As Trustee
By:
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Authorized Officer
[Reverse of Note.]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 20, 1995 (the "Original
Indenture"), as supplemented by the Fifth Supplemental Indenture, dated as of
March 4, 2003 (the "Fifth Supplemental Indenture") (the Original Indenture and
the Fifth Supplemental Indenture together herein called the "Indenture", which
term shall have the meaning assigned to it in such instrument), between the
Company and Computershare Trust Company of Canada (formerly, Montreal Trust
Company of Canada), as trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to US$200,000,000, all of
which are issued under the Fifth Supplemental Indenture. The Company may from
time to time, without the consent of the holders of the Notes, create and issue
further notes having the same terms and conditions in all respects as the notes
being offered hereby, except for the issue date, the issue price and the first
payment of interest thereon. Additional notes issued in this manner will be
consolidated with and will form a single series with the notes, as the case may
be, being offered hereby.
The Company will pay to each Holder, other than an Excluded Holder,
certain Additional Amounts in the event of the withholding or deduction of
certain Canadian taxes as described in the Fifth Supplemental Indenture.
The Securities are redeemable, at any time at the Company's option, at
a redemption price equal to the greater of the principal amount thereof plus
accrued and unpaid interest and an amount that includes a make-whole premium, as
described in the Fifth Supplemental Indenture. The Securities are also
redeemable in the event of certain changes affecting Canadian withholding tax,
as described in the Fifth Supplemental Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
-2-
In the event of purchase pursuant to an Offer to Purchase of this
Security in part only, a new Security or Securities of this series and of like
tenor for the unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture provides that, subject to certain conditions, if certain
net proceeds are available to the Company as a result of asset dispositions, the
Company shall be required to make an Offer to Purchase for a specified portion
of the Securities.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereafter or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in, and subject to, the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by
-3-
a written instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder hereof or attorney duly
authorized in writing, and, thereupon, one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of US$1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
pursuant to Section 302 of the Fifth Supplemental Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased
pursuant to Section 302 of the Fifth Supplemental Indenture, state the amount:
$
Dated: Your Signature:
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(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
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(Signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation in
a "medallion signature guarantee program" as may be
determined by the Registrar, all in accordance with the
Securities Exchange Act of 1934, as amended)
