EXHIBIT 7.1
EXECUTION COPY
FAIRMONT HOTELS & RESORTS INC.
and
THE BANK OF NEW YORK
as Trustee
--------------------
INDENTURE
Dated as of December 8, 2003
--------------------
$270,000,000 Principal Amount
(Includes Exercise of Initial Purchasers' Option In Full)
3.75% CONVERTIBLE SENIOR NOTES DUE 2023
CROSS-REFERENCE TABLE*
TIA Indenture
Section Section
------- -------
310(a)(1)..................................................................................... 710
(a)(2)................................................................................... 710
(a)(3)................................................................................... N.A.
(a)(4)................................................................................... N.A.
(b)...................................................................................... 708; 710; 1102
(c)...................................................................................... N.A.
311(a)........................................................................................ 711
(b)...................................................................................... 711
(c)...................................................................................... N.A.
312(a)........................................................................................ 205
(b)...................................................................................... 1103
(c)...................................................................................... 1103
313(a)........................................................................................ 706
(b)(1)................................................................................... N.A.
(b)(2)................................................................................... 706
(c)...................................................................................... 706; 1102
(d)...................................................................................... 706
314(a)........................................................................................ 403
(b)...................................................................................... N.A.
(c)(1)................................................................................... 1104
(c)(2)................................................................................... 1104
(c)(3)................................................................................... N.A.
(d)...................................................................................... N.A.
(e)...................................................................................... 1105
(f)...................................................................................... N.A.
315(a)........................................................................................ 701(b)
(b)...................................................................................... 705; 1102
(c)...................................................................................... 701(a)
(d)...................................................................................... 701(c)
(e)...................................................................................... 611
316(a)(last sentence)......................................................................... 209
(a)(1)(A)................................................................................ 605
(a)(1)(B)................................................................................ 604
(a)(2)................................................................................... N.A.
(b)...................................................................................... 607
317(a)(1)..................................................................................... 608
(a)(2)................................................................................... 609
(b)...................................................................................... 204
318(a)........................................................................................ 1101
* N.A means Not Applicable.
Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 101. Definitions.............................................................................. 1
"Additional Interest Amount"............................................................................. 1
"Affiliate".............................................................................................. 1
"Agent".................................................................................................. 1
"Authorized Newspaper"................................................................................... 1
"Board of Directors"..................................................................................... 1
"Board Resolution"....................................................................................... 1
"Canadian GAAP".......................................................................................... 1
"Canadian Legend"........................................................................................ 1
"Canadian Person"........................................................................................ 1
"Canadian Securities Laws"............................................................................... 2
"Calculation Agent"...................................................................................... 2
"Capital Stock".......................................................................................... 2
"Clearstream"............................................................................................ 2
"Close of Business"...................................................................................... 2
"Closing Sale Price"..................................................................................... 2
"Code"................................................................................................... 2
"Common Shares".......................................................................................... 2
"Company"................................................................................................ 2
"Company Request" or "Company Order"..................................................................... 2
"Consolidated Net Tangible Assets"....................................................................... 2
"Conversion Agent"....................................................................................... 3
"Conversion Price"....................................................................................... 3
"Conversion Value"....................................................................................... 3
"Corporate Trust Office of the Trustee".................................................................. 3
"Default"................................................................................................ 3
"Depositary"............................................................................................. 3
"Euroclear".............................................................................................. 3
"Exchange Act"........................................................................................... 3
"Holder" or "Security Holder"............................................................................ 3
"Indenture".............................................................................................. 3
"Initial Purchasers"..................................................................................... 3
"Initial Purchasers' Option"............................................................................. 3
"Issue Date"............................................................................................. 3
"Joint Venture".......................................................................................... 4
"Maturity Date".......................................................................................... 4
"Non-Recourse Indebtedness".............................................................................. 4
"Non-U.S. Person"........................................................................................ 4
"Offering Memorandum" ................................................................................... 4
"Officer"................................................................................................ 4
"Officers' Certificate".................................................................................. 4
"Opinion of Counsel"..................................................................................... 4
"Person"................................................................................................. 4
"Prescribed Security".................................................................................... 4
"Purchase Agreement"..................................................................................... 4
"QIB".................................................................................................... 4
"Reclassification"....................................................................................... 4
"Redemption Date"........................................................................................ 4
"Redemption Price"....................................................................................... 5
"Registration Rights Agreement".......................................................................... 5
"Regulation S"........................................................................................... 5
"Regulation S Global Security"........................................................................... 5
"Reorganization"......................................................................................... 5
"Responsible Officer".................................................................................... 5
"Restricted Security".................................................................................... 5
"Rule 144A".............................................................................................. 5
"Rule 144A Global Security".............................................................................. 5
"Sale"................................................................................................... 5
"Sanctions Regulations".................................................................................. 5
"SEC".................................................................................................... 5
"Securities"............................................................................................. 5
"Securities Act"......................................................................................... 5
"Significant Subsidiary"................................................................................. 6
"Stated Maturity"........................................................................................ 6
"Subsidiary"............................................................................................. 6
"Tax Act"................................................................................................ 6
"TIA".................................................................................................... 6
"Trading Day"............................................................................................ 6
"Trading Price".......................................................................................... 6
"Trustee"................................................................................................ 6
"U.S. GAAP".............................................................................................. 6
SECTION 102. Other Definitions........................................................................ 6
SECTION 103. Incorporated by Reference from Trust Indenture Act....................................... 8
SECTION 104. Rules of Construction.................................................................... 8
ARTICLE TWO
THE SECURITIES
SECTION 201. Form and Dating.......................................................................... 9
SECTION 202. Execution and Authentication............................................................. 9
SECTION 203. Registrar, Paying Agent and Conversion Agent............................................. 10
SECTION 204. Paying Agent to Hold Money in Trust...................................................... 11
SECTION 205. Security Holder Lists.................................................................... 11
SECTION 206. Transfer and Exchange.................................................................... 11
SECTION 207. Replacement Securities................................................................... 12
SECTION 208. Outstanding Securities................................................................... 12
SECTION 209. Securities held by the Company or an Affiliate........................................... 13
SECTION 210. Temporary Securities..................................................................... 13
SECTION 211. Cancellation............................................................................. 13
SECTION 212. Defaulted Interest....................................................................... 14
SECTION 213. CUSIP Numbers............................................................................ 14
ii
SECTION 214. Deposit of Moneys........................................................................ 14
SECTION 215. Book-Entry Provisions for Global Securities.............................................. 14
SECTION 216. Special Transfer Provisions.............................................................. 16
SECTION 217. Restrictive Legends...................................................................... 19
SECTION 218. Computation of Interest.................................................................. 19
SECTION 219. Ranking.................................................................................. 19
SECTION 220. Additional Interest Amount............................................................... 19
ARTICLE THREE
REDEMPTION AND PURCHASE OF SECURITIES
SECTION 301. Right of Redemption; No Sinking Fund..................................................... 20
SECTION 302. Notices to Trustee....................................................................... 20
SECTION 303. Selection of Securities to be Redeemed................................................... 20
SECTION 304. Notice of Redemption..................................................................... 20
SECTION 305. Effect of Notice of Redemption........................................................... 22
SECTION 306. Deposit of Redemption Price.............................................................. 22
SECTION 307. Securities Redeemed in Part.............................................................. 23
SECTION 308. Redemption For Tax Reasons............................................................... 23
SECTION 309. Purchase at the Option of Holders upon a Designated Event................................ 24
SECTION 310. Purchase of Securities by the Company at the Option of Holder............................ 28
SECTION 311. Conversion Arrangement on Call For Redemption............................................ 31
ARTICLE FOUR
COVENANTS
SECTION 401. Payment of Securities.................................................................... 32
SECTION 402. Maintenance of Office or Agency.......................................................... 32
SECTION 403. Reports.................................................................................. 33
SECTION 404. Compliance Certificate................................................................... 33
SECTION 405. Stay, Extension and Usury Laws........................................................... 34
SECTION 406. Corporate Existence...................................................................... 34
SECTION 407. Payment of Additional Amounts............................................................ 34
SECTION 408. Notice of Default........................................................................ 36
SECTION 409. Use of Proceeds; Repayment............................................................... 36
SECTION 410. Further Instruments and Acts............................................................. 36
ARTICLE FIVE
SUCCESSORS
SECTION 501. When Company May Merge, Etc.............................................................. 36
SECTION 502. Successor Substituted.................................................................... 37
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 601. Events of Default........................................................................ 37
SECTION 602. Acceleration............................................................................. 39
SECTION 603. Other Remedies........................................................................... 40
SECTION 604. Waiver of Past Defaults.................................................................. 40
SECTION 605. Control by Majority...................................................................... 40
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SECTION 606. Limitation on Suits...................................................................... 40
SECTION 607. Rights of Holders to Receive Payment..................................................... 41
SECTION 608. Collection Suit by Trustee............................................................... 41
SECTION 609. Trustee May File Proofs of Claim......................................................... 41
SECTION 610. Priorities............................................................................... 41
SECTION 611. Undertaking for Costs.................................................................... 42
ARTICLE SEVEN
TRUSTEE
SECTION 701. Duties of Trustee........................................................................ 42
SECTION 702. Rights of Trustee........................................................................ 43
SECTION 703. Individual Rights of Trustee............................................................. 45
SECTION 704. Trustee's Disclaimer..................................................................... 45
SECTION 705. Notice of Defaults....................................................................... 45
SECTION 706. Reports by Trustee to Holders............................................................ 45
SECTION 707. Compensation and Indemnity............................................................... 45
SECTION 708. Replacement of Trustee................................................................... 46
SECTION 709. Successor Trustee by Merger, etc......................................................... 47
SECTION 710. Eligibility, Disqualification............................................................ 47
SECTION 711. Preferential Collection of Claims Against Company........................................ 47
SECTION 712. Appointment of Co-Trustee................................................................ 47
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 801. Termination of the Obligations of the Company............................................ 49
SECTION 802. Application of Trust Money............................................................... 50
SECTION 803. Repayment to Company..................................................................... 50
SECTION 804. Reinstatement............................................................................ 50
ARTICLE NINE
AMENDMENTS
SECTION 901. Without Consent of Holders............................................................... 51
SECTION 902. With Consent of Holders.................................................................. 51
SECTION 903. Compliance with Trust Indenture Act...................................................... 52
SECTION 904. Revocation and Effect of Consents........................................................ 53
SECTION 905. Notation on or Exchange of Securities.................................................... 53
SECTION 906. Trustee Protected........................................................................ 53
ARTICLE TEN
CONVERSION
SECTION 1001. Right To Convert......................................................................... 53
SECTION 1002. Exercise of Conversion Privilege; Issuance of Common Shares on Conversion; No
Adjustment For Interest or Dividends..................................................... 56
SECTION 1003. Cash Payments in Lieu of Fractional Shares............................................... 58
SECTION 1004. Conversion Rate.......................................................................... 58
SECTION 1005. Adjustment of Conversion Rate............................................................ 58
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SECTION 1006. Effect of Reclassification, Reorganization or Sale and Further Adjustment to the
Conversion Rate...................................................................... 69
SECTION 1007. Taxes On Shares Issued............................................................... 70
SECTION 1008. Reservation of Shares, Shares to Be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Shares............................................... 70
SECTION 1009. Responsibility Of Trustee............................................................ 71
SECTION 1010. Notice To Holders Prior To Certain Actions........................................... 71
SECTION 1011. Shareholder Rights Plans............................................................. 72
SECTION 1012. Transfer Restrictions................................................................ 72
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 1101. Trust Indenture Act Controls......................................................... 73
SECTION 1102. Notices.............................................................................. 73
SECTION 1103. Communication by Holders with Other Holders.......................................... 74
SECTION 1104. Certificate and Opinion as to Conditions Precedent................................... 74
SECTION 1105. Statements Required in Certificate or Opinion........................................ 75
SECTION 1106. Rules by Trustee and Agents.......................................................... 75
SECTION 1107. Legal Holidays....................................................................... 75
SECTION 1108. No Recourse Against Others........................................................... 75
SECTION 1109. Duplicate Originals.................................................................. 76
SECTION 1110. Governing Law........................................................................ 76
SECTION 1111. No Adverse Interpretation of Other Agreements........................................ 76
SECTION 1112. Successors........................................................................... 76
SECTION 1113. Consent to Jurisdiction and Service of Process....................................... 76
SECTION 1114. Waiver of Jury Trial................................................................. 77
SECTION 1115. Force Majeure........................................................................ 77
SECTION 1116. Conversion of Currency............................................................... 77
SECTION 1117. Separability......................................................................... 79
SECTION 1118. Table of Contents, Headings, etc..................................................... 79
EXHIBIT A Face of Security......................................................................... A-1
Trustee's Certificate of Authentication.................................................. A-2
Reverse of Security...................................................................... A-3
Form of Assignment....................................................................... A-11
Conversion Notice........................................................................ A-14
Designated Purchase Offer Purchase Acceptance Notice..................................... A-15
Notice of Election Upon Tax Redemption................................................... A-16
SCHEDULE A ......................................................................................... Schedule X-0
XXXXXXX X-0 Form of Private Placement Legend......................................................... X-0-0
XXXXXXX X-0 Form of Legend for Global Security....................................................... X-0-0
XXXXXXX X-0 Form of Canadian Legend.................................................................. X-0-0
XXXXXXX X-0 Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S................................................................. D-1-1
EXHIBIT E Form of Notice of Transfer Pursuant to Registration Statement............................ E-1
EXHIBIT F Form of Opinion of Counsel in Connection with Registration Statement..................... F-1
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INDENTURE, dated as of December 8, 2003 between FAIRMONT
HOTELS & RESORTS INC., a Canadian corporation (the "COMPANY"), and THE BANK OF
NEW YORK, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
3.75% Convertible Senior Notes due 2023 (the "SECURITIES").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 101. DEFINITIONS.
"ADDITIONAL INTEREST AMOUNT" has the meaning provided in the
Registration Rights Agreement.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For this purpose, "control" shall mean the
power to direct the management and policies of a Person, directly or indirectly,
through the ownership of securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"AUTHORIZED NEWSPAPER" means a newspaper printed in the English
language and customarily published at least once a day on each Business Day in
each calendar week and of general circulation in the Borough of Manhattan, the
City and State of New York, whether or not such newspaper is published on
Saturdays, Sundays and legal holidays.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
committee thereof authorized to act for it hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"CANADIAN GAAP" means generally accepted accounting principles in
Canada.
"CANADIAN LEGEND" means a legend labelled as such set forth in Exhibit
B-3 hereto.
"CANADIAN PERSON" means any person in Canada or resident in Canada,
including any natural person resident in Canada, any partnership or corporation
organized or incorporated under the federal laws of Canada or the laws of any
province or territory of Canada, any estate of which any executor or
administrator is a Canadian person, any trust of which the trustee making the
investment decision is a Canadian person, any agency or branch of a foreign
entity located in Canada and any discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in Canada.
1
"CANADIAN SECURITIES LAWS" means the securities laws, rules,
regulations and written policy statements of any province or territory of
Canada, as the same may be amended from time to time.
"CALCULATION AGENT" means Citigroup Global Markets Inc. or UBS
Securities LLC, or any other securities dealer selected by the Company.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of share capital or capital stock, as the
case may be, of the Person and all warrants or options to acquire such share
capital or capital stock, as the case may be.
"CLEARSTREAM" means Clearstream Bank, S.A.
"CLOSE OF BUSINESS" means, as of any determination date, 5:00 p.m., New
York City time, on such determination date.
"CLOSING SALE PRICE" of the Common Shares on any date means the closing
sale price per Common Share (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date as reported
in composite transactions for the principal United States securities exchange on
which the Common Shares are traded or, if the Common Shares are not listed on a
United States national or regional securities exchange, as reported by the
Nasdaq System or, if no such price is reported, as reported by the principal
non-United States market on which the Common Shares are traded, such price to be
converted into U.S. dollars based on the Bank of Canada noon exchange rate as
reported for conversion into U.S. dollars on such date. In the absence of such
quotation, the Board of Directors will determine in good faith the Closing Sale
Price.
"CODE" means the United States Internal Revenue Code of 1986, as
amended.
"COMMON SHARES" means the common shares of the Company and associated
common share purchase rights, or such other capital stock into which the
Company's common shares are reclassified or changed.
"COMPANY" means the party named as such above until a successor
replaces it pursuant to the applicable provision hereof and thereafter means the
successor.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request or order
signed on behalf of the Company by any one of its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Senior Vice President or any Vice President and by any
one of its Treasurer, Assistant Treasurer, Corporate Secretary or Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of the
Company's assets (including investments in Joint Ventures and assets of
Subsidiaries (less applicable depreciation, amortization and other valuation
reserves) after deducting therefrom (a) all of the Company's and its
Subsidiaries' current liabilities (excluding (i) the current portion of
long-term indebtedness, (ii) intercompany liabilities and (iii) any liabilities
which are by their terms
2
renewable or extendible at the option of the obligor thereon to a time more than
12 months from the time as of which the amount thereof is being computed) and
(b) all goodwill, tradenames, trademarks, patents, unamortized debt discount and
other like intangibles, all as set forth on the Company's most recent
consolidated balance sheet and computed in accordance with Canadian GAAP (or
U.S. GAAP if adopted by the Company for use in the preparation of its audited
financial statements).
"CONVERSION AGENT" means any Person designated by the Company to act in
connection with the conversion of Securities in accordance with Article Ten. The
Company has initially appointed the Trustee as its Conversion Agent, which shall
maintain an office or agency in the Borough of Manhattan, The City of New York,
New York.
"CONVERSION PRICE" as of any day will equal $1,000 divided by the
Conversion Rate on such day, rounded to the nearest cent.
"CONVERSION VALUE" is equal to the product of the Closing Sale Price
for Common Shares on a given day multiplied by the then current Conversion Rate.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 1102 or such other address as the Trustee may give
notice of to the Holders and the Company.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear System.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"HOLDER" OR "SECURITY HOLDER" means a person in whose name a Security
is registered on the Registrar's books.
"INDENTURE" means this Indenture as amended or supplemented from time
to time, including the provisions of the TIA that are deemed to be a part
hereof.
"INITIAL PURCHASERS" means Citigroup Global Markets Inc., UBS
Securities LLC, Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. and
Xxxxxx Xxxxxxx & Co. Incorporated.
"INITIAL PURCHASERS' OPTION" means the option granted to the Initial
Purchasers to purchase up to an additional $25,000,000 aggregate principal
amount of Securities pursuant to the Purchase Agreement.
"ISSUE DATE"of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
3
"JOINT VENTURE" means any partnership, corporation or other entity, in
which the Company and/or one or more of its Subsidiaries own, directly or
indirectly, up to and including 50% of the partnership interests, outstanding
voting stock or other equity interest.
"MATURITY DATE" means the date on which the principal of such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, Designated
Event Notice, or Purchase Notice or otherwise.
"NON-RECOURSE INDEBTEDNESS" means indebtedness the terms of which
provide that the lender's claim for repayment of such indebtedness is limited
solely to a claim against the property which secures such indebtedness.
"NON-U.S. PERSON" means a Person who is not a "U.S. person" (as such
term is defined in Regulation S under the Securities Act).
"OFFERING MEMORANDUM" means the Offering Memorandum of the Company
dated December 2, 2003 relating to the Securities.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, any
Senior Vice President, any Vice President, the Treasurer, the Corporate
Secretary or the General Counsel of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or an Assistant Corporate Secretary of
the Company.
"OPINION OF COUNSEL" means a written opinion from legal counsel who may
be an employee of or counsel for the Company, or other counsel reasonably
acceptable to the Trustee.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"PRESCRIBED SECURITY" means a security prescribed for purposes of
clause 212(1)(b)(vii)(E) of the Tax Act.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of December
2, 2003 between the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"RECLASSIFICATION" means any reclassification of the Common Shares
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination).
"REDEMPTION DATE" means the date specified for redemption of any
Security in accordance with the terms of such Security and this Indenture.
4
"REDEMPTION PRICE" means, with respect to a Security to be redeemed by
the Company in accordance with Article Three, the percentage of the outstanding
principal amount of such Security payable by the Company upon such redemption.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of December 8, 2003 between the Company and the Initial Purchasers.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL SECURITY" means a permanent Global Security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S.
"REORGANIZATION" means a consolidation, merger, amalgamation, binding
share exchange, statutory arrangement (involving a business combination) or
similar transaction involving the Company.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"RESTRICTED SECURITY" means a Security that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) promulgated under the Securities
Act; provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 144A GLOBAL SECURITY" means a permanent Global Security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Rule 144A.
"SALE" means any sale, lease or conveyance of the property and assets
of the Company as an entirety or substantially as an entirety.
"SANCTIONS REGULATIONS" mean the regulations of the United States
Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended,
or any enabling legislation or executive order relating thereto.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the 3.75% Convertible Senior Notes due 2023 issued
by the Company pursuant to this Indenture, including pursuant to the exercise of
the Initial Purchasers' Option.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
5
"SIGNIFICANT SUBSIDIARY" with respect to any Person means any
subsidiary of such Person that constitutes a "significant subsidiary" within the
meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act.
"STATED MATURITY" means December 1, 2023.
"SUBSIDIARY" means any corporation of which at least majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation is, at the time, directly or
indirectly, owned by the Company or by one or more Subsidiaries or by the
Company and one or more of its Subsidiaries.
"TAX ACT" means the Income Tax Act (Canada) and any reference thereto
includes a reference to an equivalent provision of a Canadian, provincial or
territorial income tax statute.
"TIA" means the U.S. Trust Indenture Act of 1939 as in effect on the
date of this Indenture, except as provided in Section 903.
"TRADING DAY", with respect to the Common Shares or any other security,
shall mean (x) a day on which the exchange or market, on which a determination
as to the price of such Common Shares or other security is based, is open for
business, or (y) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
"TRADING PRICE" of the Securities means, on any date, the average of
the secondary market bid quotations per Security obtained by the Company or a
Calculation Agent for $1,000,000 principal amount of Securities at approximately
3:30 p.m., New York City time, on such date from three independent nationally
recognized securities dealers selected by the Company; provided that if at least
three such bids cannot reasonably be obtained by the Company or a Calculation
Agent, but two such bids are obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be obtained by the Company or a
Calculation Agent, that one bid shall be used; provided further that if the
Company or a Calculation Agent cannot reasonably obtain at least one bid for
$1,000,000 principal amount of Securities from a nationally recognized
securities dealer, then the Trading Price shall be deemed to be less than 98% of
the product of the average Conversion Value of the Securities.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions hereof and thereafter
means the successor.
"U.S. GAAP" means generally accepted accounting principles in the
United States.
SECTION 102. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"ACCEPTED PURCHASED SHARES" 1005
"ADDITIONAL AMOUNTS" 407
"ADJUSTMENT EVENT" 1005
6
"ASSOCIATE" 309
"BANKRUPTCY LAW" 601
"BUSINESS DAY" 1107
"CANADIAN TAXES" 407
"CHANGE IN CONTROL" 309
"COMPANY CASH CONVERSION OPTION" 1002
"COMPANY PURCHASE NOTICE" 310
"CONVERSION AGENT" 203
"CONVERSION DATE" 1002
"CONVERSION NOTICE" 1002
"CONVERSION RATE" 1004
"CURRENT MARKET PRICE" 1005
"CUSTODIAN" 601
"DEEMED INTEREST PERIOD" 218
"DESIGNATED EVENT" 309
"DESIGNATED EVENT NOTICE" 309
"DESIGNATED EVENT PURCHASE DATE" 309
"DESIGNATED EVENT PURCHASE OFFER" 309
"DESIGNATED EVENT PURCHASE PRICE" 309
"DESIGNATED EVENT PURCHASE NOTICE" 309
"DETERMINED DATE" 1005
"DISTRIBUTED SECURITIES" 1005
"DISTRIBUTED SECURITIES CLOSING SALE PRICE" 1005
"DIVIDEND THRESHOLD XXXXXX" 0000
"EVENT OF DEFAULT" 601
"EXCLUDED HOLDER" 407
"EXCLUDED TAXES" 407
"EX-DIVIDEND DATE" 1005
"EX-DIVIDEND TIME" 1001
"EXPIRATION TIME" 1005
"FAIR MARKET VALUE" 1005
"FUNDAMENTAL CHANGE" 309
"GLOBAL SECURITY" 201
"INELIGIBLE CONSIDERATION" 1006
"JUDGMENT CURRENCY" 1116
"LEGAL HOLIDAY" 1107
"NON-ELECTING SHARE" 1006
"NOTICE OF DEFAULT" 601
"NOTICE OF ELECTION" 308
"OFFER EXPIRATION TIME" 1005
"PARTICIPANTS" 215
"PAYING AGENT" 203
"PHYSICAL SECURITIES" 201
"PRIVATE PLACEMENT LEGEND" 217
"PURCHASE DATE" 310
"PURCHASE NOTICE" 310
7
"PURCHASE PRICE" 310
"PURCHASED SHARES" 1005
"RATE(S) OF EXCHANGE" 1116
"RECORD DATE" 1005
"REGISTRAR" 203
"REQUIRED CURRENCY" 1116
"RESTRICTED PERIOD" 215
"TERMINATION OF TRADING" 309
"TRIGGER EVENT" 1005
"U.S. GOVERNMENT OBLIGATIONS" 801
"VOTING SECURITIES" 309
SECTION 103. INCORPORATED BY REFERENCE FROM TRUST
INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"COMMISSION" means the SEC;
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Security Holder or a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the indenture securities means the Company or any
successor.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein have the meanings so assigned to them.
SECTION 104. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with Canadian GAAP in effect on
the date hereof;
(c) "or" is not exclusive;
(d) words in the singular include the plural and in
the plural include the singular;
(e) all references to "dollars" and "$" shall mean
U.S. dollars;
8
(f) provisions apply to successive events and
transactions; and
(g) "herein", "hereof", "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 201. FORM AND DATING.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form set forth in EXHIBIT A, which is incorporated
in and forms a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or customary usage.
Each Security shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A or on
Regulation S under the Securities Act shall be issued initially in the form of
one or more Global Securities, substantially in the form set forth in EXHIBIT A
(the "GLOBAL SECURITY"), deposited with, or on behalf of, the Depositary or with
the Trustee, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee thereof, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and bearing the legends set
forth in EXHIBITS X-0, X-0 and, to the extent applicable, B-3. The aggregate
principal amount of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided; provided, that in no event shall the
aggregate principal amount of the Global Security or Securities exceed
$245,000,000, or $270,000,000 if the Initial Purchasers' Option is exercised in
full.
Securities issued in exchange for interests in a Global
Security pursuant to Section 215 may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in EXHIBIT A (the "PHYSICAL SECURITIES") and, if applicable, bearing any legends
required by Section 217.
All Securities offered and sold in reliance on Regulation S
shall remain in the form of a Global Security for 40 days after the Issue Date
for the Securities. Notwithstanding the foregoing, in the event that Physical
Securities are issued in respect of beneficial interests in a Regulation S
Global Security at any time prior to 40 days after the date of this Indenture
(other than in a transaction subject to Rule 144A) the Company shall, as
promptly as practicable, institute procedures, including appropriate
certifications reasonably designed to ensure that any transfer of such Physical
Securities prior to the end of such 40 day period is made only in accordance
with Regulation S, pursuant to a registration statement under the Securities Act
or pursuant to an exemption from registration under the Securities Act.
SECTION 202. EXECUTION AND AUTHENTICATION.
9
The Securities shall be executed on behalf of the Company by
one Officer by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Security has been duly authenticated and delivered under this Indenture.
Upon a written order of the Company signed by one Officer of
the Company, the Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $245,000,000, or $270,000,000 if the Initial
Purchasers' Option is exercised in full. The aggregate principal amount of
Securities outstanding at any time may not exceed $245,000,000, or $270,000,000
if the Initial Purchasers' Option is exercised in full, except as provided in
Section 207.
Upon a written order of the Company signed by one Officer of
the Company, the Trustee shall authenticate Securities not bearing the Private
Placement Legend to be issued to the transferee when sold pursuant to an
effective registration statement under the Securities Act as set forth in
Section 216(d).
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Agent. An
authenticating agent has the same rights as an Agent to deal with the Company
and its Affiliates.
The Securities shall be issuable only in registered book-entry
form without interest coupons and only in denominations of $1,000 principal
amount and any positive integral multiple thereof.
SECTION 203. REGISTRAR, PAYING AGENT AND CONVERSION
AGENT.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR"), an office or agency
where Securities may be presented for payment ("PAYING AGENT") and an office or
agency where Securities may be presented for conversion ("CONVERSION AGENT").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint or change one or more co-registrars, one or
more additional paying agents and one or more additional conversion agents
without notice and may act in any such capacity on its own behalf. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Conversion Agent" includes any additional
conversion agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any
10
Agent not a party to this Indenture. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent,
Registrar and Conversion Agent.
SECTION 204. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Security Holders or the Trustee all moneys held by the Paying Agent for the
payment of the Securities, and shall notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no
further liability for the money. If the Company acts as Paying Agent, it shall
segregate and hold as a separate trust fund all money held by it as Paying
Agent.
SECTION 205. SECURITY HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Security Holders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee on or before each interest payment date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Security Holders.
SECTION 206. TRANSFER AND EXCHANGE.
Subject to Sections 215 and 216 hereof, where Securities are
presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met. To permit registrations of
transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. The Company or the Trustee, as the case may be, shall not
be required (a) to issue, authenticate, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of the Securities selected for redemption
under Section 304 and ending at the Close of Business on the day of such
mailing, (b) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of Securities
being redeemed in part, or (c) to register the transfer or exchange of any
Security in respect of which a Designated Event Purchase Notice or Purchase
Notice has been given and not withdrawn by the Holder thereof in accordance with
the terms of this Indenture (except, in the case of any Security to be purchased
in part, the portion thereof not to be purchased).
No service charge shall be made for any transfer, exchange or
conversion of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, exchange or conversion of Securities, other than
exchanges pursuant to Sections 210, 301, 307, 308, 309, 310, 905 or 1002 not
involving any transfer.
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Notwithstanding any provision to the contrary herein, so long
as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security shall be made only in accordance with
this Article Two. Transfers of a Global Security shall be limited to transfers
of such Global Security in whole, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
Any Registrar appointed pursuant to Section 203 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
No Registrar shall be required to make registrations of
transfer or exchange of Securities during any periods designated in the text of
the Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
SECTION 207. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or stolen, the Company shall issue and the Trustee
shall authenticate a replacement Security if the Trustee's requirements are met
and, in the case of a mutilated Security, such mutilated Security is surrendered
to the Trustee. In the case of lost, destroyed or stolen Securities, an
indemnity bond must be provided by the Holder that is sufficient in the judgment
of the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced. The Trustee may charge
for its reasonable expenses in replacing a Security.
In case any such mutilated, lost, destroyed or stolen Security
has become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article Three hereof, the Company in its
discretion may, instead of issuing a new Security, pay such Security when due or
redeem or purchase, such Security, as applicable.
Every replacement Security is an additional obligation of the
Company only as provided in Section 208 and shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
SECTION 208. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those converted, those cancelled by it,
those delivered to it for cancellation and those described in this Section 208
as not outstanding. Except to the extent provided in Section 209, a Security
does not cease to be outstanding because the Company or one of its Subsidiaries
or Affiliates holds the Security.
12
If a Security is replaced pursuant to Section 207, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it, or a
court holds, that the replaced Security is held by a protected purchaser, as
that term is defined in the New York Uniform Commercial Code.
If the Paying Agent (other than the Company) holds on a
Redemption Date, Purchase Date, Designated Event Purchase Date or Maturity Date
money sufficient to pay Securities payable on that date, then on and after that
date, such Securities shall be deemed to be no longer outstanding and interest
on them shall cease to accrue, and such Security shall be deemed paid whether or
not the Security is delivered to the Paying Agent. Thereafter, all other rights
of the Holders of such Securities shall terminate with respect to such
Securities, other than the right to receive the Redemption Price, Purchase
Price, Designated Event Purchase Price or principal amount, as applicable.
If a Security is converted in accordance with Article Ten,
then from and after the time of conversion on the date of conversion, such
Security shall cease to be outstanding and interest, if any, shall cease to
accrue on such Security.
SECTION 209. SECURITIES HELD BY THE COMPANY OR AN
AFFILIATE.
In determining whether the Holders of the required aggregate
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or any of its Subsidiaries or an
Affiliate shall be considered as though not outstanding, except that for the
purposes of determining whether a Responsible Officer of the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded.
SECTION 210. TEMPORARY SECURITIES.
Until Physical Securities are ready for delivery, the Company
may prepare and execute and the Trustee shall authenticate and deliver temporary
Securities. Temporary Securities shall be substantially in the form of Physical
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
execute and the Trustee shall authenticate and deliver Physical Securities in
exchange for temporary Securities.
After the preparation of Physical Securities, the temporary
Securities shall be exchangeable for Physical Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such
purpose pursuant to Section 203, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities, the Company shall
prepare and execute and the Trustee shall authenticate and deliver in exchange
therefore a like aggregate principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as Physical
Securities.
SECTION 211. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward
to the Trustee any Securities
13
surrendered to them for transfer, exchange, payment or conversion. The Trustee
shall cancel all Securities surrendered for transfer, exchange, payment,
conversion or cancellation in accordance with its customary procedures. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation or that any Security Holder has
converted pursuant to Article Ten.
SECTION 212. DEFAULTED INTEREST.
If and to the extent the Company defaults in a payment of
interest on the Securities, the Company shall pay the defaulted interest in any
lawful manner plus, to the extent not prohibited by applicable statute or case
law, interest payable on the defaulted interest at the rate borne by the
Securities. The Company may pay the defaulted interest to the persons who are
Security Holders on a subsequent special record date. The Company shall fix such
special record date and payment date. At least 15 days before such special
record date, the Company shall mail to Security Holders a notice that states the
special record date, payment date and amount of interest to be paid.
SECTION 213. CUSIP NUMBERS.
The Company in issuing the Securities may use one or more
"CUSIP" numbers, and if so, the Trustee shall use the CUSIP numbers in notices
of redemption or exchange as a convenience to Holders; provided, however, that
no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of the CUSIP numbers printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the Trustee
of any change in the CUSIP numbers.
SECTION 214. DEPOSIT OF MONEYS.
Prior to 11:00 A.M., New York City time, on each interest
payment date, the Maturity Date, Redemption Date, Designated Event Purchase Date
and Purchase Date, the Company shall deposit with the Trustee or with the Paying
Agent (or if the Company is acting as its own Paying Agent, segregate and hold
in trust in accordance with Section 204) an amount of money in immediately
available funds, sufficient to make cash payments, if any, due on such interest
payment date, Maturity Date, Redemption Date, Designated Event Purchase Date and
Purchase Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such interest payment date, Maturity
Date, Redemption Date, Designated Event Purchase Date and Purchase Date, as the
case may be.
SECTION 215. BOOK-ENTRY PROVISIONS FOR GLOBAL
SECURITIES.
(a) The Global Securities initially shall (i) be
registered in the name of the Depositary or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth in Section 217.
Members of, or participants in, the Depositary
("PARTICIPANTS") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may
14
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
Investors in the Regulation S Global Security may hold their
interests in the Regulation S Global Security through Euroclear or Clearstream,
if they are participants in such systems, or indirectly through organizations
which are participants in such systems. After the expiration of the Restricted
Period (but not earlier), investors in the Regulation S Global Security may also
hold such interests through organizations other than Euroclear or Clearstream
that are participants in the Depositary's system. Euroclear and Clearstream will
hold interests in the Regulation S Global Security on behalf of their
participants through customers' securities accounts in their respective names on
the books of their respective depositories, which, in turn, will hold such
interests in the Regulation S Global Security in customer's securities accounts
in the depositories' names on the books of the Depositary. All interests in a
Global Security, including those held through Euroclear or Clearstream, may be
subject to the procedures and requirements of the Depositary. Those interests
held through Euroclear and Clearstream will be subject to the procedures and
requirements of such systems. As used herein, the term "RESTRICTED PERIOD" means
the period of 40 consecutive days beginning on and including the first day after
the later of (i) the day that Citigroup Global Markets Inc. or UBS Securities
LLC advises the Company and the Trustee in writing of the day on which the
Securities are first offered to persons other than distributors (as defined in
Regulation S) and (ii) the original Issue Date of the Securities.
(b) Transfers of Global Securities shall be limited
to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the
Depositary notifies the Company that it is unwilling or unable to
continue as depositary for any Global Security or if the Depository
ceases to be a clearing agency registered under the Exchange Act and a
successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a written request from a beneficial
owner to issue Physical Securities.
(c) In connection with the transfer of a Global
Security in its entirety to beneficial owners pursuant to Section
215(b), such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the
Trustee shall upon written instructions from the Company authenticate
and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Physical Securities of authorized
denominations.
(d) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global Security
pursuant to Section 215(b) shall, except as otherwise provided by
Section 216, bear the Private Placement Legend.
15
(e) The Holder of any Global Security may grant
proxies and otherwise authorize any Person, including Participants and
Persons that may hold interests through Participants, to take any
action which a Holder is entitled to take under this Indenture or the
Securities.
SECTION 216. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-U.S. PERSONS. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Restricted Security to any Non-U.S. Person:
(i) the Registrar shall register the
transfer of any Restricted Security, whether or not
such Security bears the Private Placement Legend, if
(x) the requested transfer is after the second
anniversary of the Issue Date and such request is
approved by the Company for the Securities; provided,
however, that neither the Company nor any of its
Affiliates has held any beneficial interest in such
Security, or portion thereof, at any time on or prior
to the second anniversary of the Issue Date for the
Securities or (y) the proposed transferor has
delivered to the Registrar certificates substantially
in the form of EXHIBIT D-1 hereto; and
(ii) if the proposed transferor is a
Participant seeking to transfer an interest in a Rule
144A Global Security to a transferee who will hold
such interest in a Regulation S Global Security, upon
receipt by the Registrar of (x) written instructions
given in accordance with the Depositary's and the
Registrar's procedures and (y) the appropriate
certificates and other documents, if any, required by
clause (y) of paragraph (i) above, the Registrar
shall register the transfer and reflect on its books
and records the date and (A) a decrease in the
aggregate principal amount of the Global Security
through which the transferor held such interest in an
amount equal to the aggregate principal amount of the
Securities to be transferred and (B) an increase in
the aggregate principal amount of the Global Security
through which the transferee proposes to hold such
interest, in an amount equal to the aggregate
principal amount of the Securities to be transferred.
(b) TRANSFERS TO QIBS. The following provisions shall
apply with respect to the registration of any proposed transfer of a
Restricted Security to a QIB:
(i) the Registrar shall register the
transfer of any Restricted Security, whether or not
such Security bears the Private Placement Legend, if
(x) the requested transfer is after the second
anniversary of the Issue Date and such request is
approved by the Company; provided, however, that
neither the Company nor any of its Affiliates has
held any beneficial interest in such Security, or
portion thereof, at any time on or prior to the
second anniversary of the Issue Date for the
Securities or (y)
16
such transfer is being made by a proposed transferor
who has checked the box provided for on the form of
Security stating, or has otherwise advised the
Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the
certification provided for on the form of Security
stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the
Security for its own account or an account with
respect to which it exercises sole investment
discretion and that it and any such account is a QIB,
and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it
has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware
that the transferor is relying upon its foregoing
representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferor is a
Participant seeking to transfer an interest in a
Regulation S Global Security to a transferee who will
hold such interest in a Rule 144A Global Security,
upon receipt by the Registrar of (x) written
instructions given in accordance with the
Depositary's and the Registrar's procedures and (y)
the appropriate certificates and other documents, if
any, required by clause (y) of paragraph (i) above,
the Registrar shall register the transfer and reflect
on its books and records the date and (A) a decrease
in the aggregate principal amount of the Global
Security through which the transferor held such
interest in an amount equal to the aggregate
principal amount of the Securities to be transferred
and (B) an increase in the aggregate principal amount
of the Global Security through which the transferee
proposes to hold such interest, in an amount equal to
the aggregate principal amount of the Securities to
be transferred.
(c) TRANSFERS TO CANADIAN PERSONS. Except in respect
of any transfer of Securities to the Company, the Securities shall be
subject to the restrictions on transfer set forth in the Canadian
Legend. Any Securities which bear the Canadian Legend may at any time
on or after May 20, 2004, on surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 206, be
exchanged for a new Security or Securities, of like tenor and aggregate
principal amount, which shall not bear the Canadian Legend. If the
Security surrendered for exchange is represented by a Global Security
bearing the Canadian Legend, the principal amount of the Global
Security so legended shall be reduced by the appropriate principal
amount and the principal amount of the Global Security without the
Canadian Legend shall be increased by an equal principal amount. If the
Global Security without the Canadian Legend is not then outstanding,
the Company shall execute and the Trustee shall authenticate and
deliver a Global Security without the Canadian Legend to the
Depositary.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture, a
Global Security
17
may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor depositary or a nominee of such successor
depositary.
(e) PRIVATE PLACEMENT LEGEND. Upon the transfer,
exchange or replacement of Securities not bearing the Private Placement
Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall
deliver only Securities that bear the Private Placement Legend unless
(i) the requested transfer is after the second anniversary of the Issue
Date and such request is approved by the Company for the Securities
(provided, however, that neither the Company nor any of its Affiliates
has held any beneficial interest in such Security, or portion thereof,
at any time prior to or on the second anniversary of the Issue Date),
(ii) there is delivered to the Trustee and to the Company an Opinion of
Counsel reasonably satisfactory to the Company to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Security has been sold pursuant to an
effective registration statement under the Securities Act and the
Holder selling such Securities has delivered to the Registrar a notice
in the form of EXHIBIT E hereto. Upon the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights
Agreement), the Company shall deliver to the Trustee a notice of
effectiveness, a Security or Securities, an authentication order in
accordance with Section 202 and an Opinion of Counsel in a form
substantially similar to EXHIBIT F hereto and, if required by the
Depositary, the Company shall deliver to the Depositary a letter of
representations in a form reasonably acceptable to the Depositary.
(f) GENERAL. By its acceptance of any Security
bearing the Private Placement Legend or the Canadian Legend, each
Holder of such a Security acknowledges the restrictions on transfer of
such Security set forth in this Indenture and in the Private Placement
Legend and the Canadian Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 215 or this Section
216. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
(g) TRANSFERS OF SECURITIES HELD BY AFFILIATES. Any
certificate (i) evidencing a Security that has been transferred to an
Affiliate of the Company within two years after the Issue Date for the
Securities, as evidenced by a notation on the assignment form for such
transfer or in the representation letter delivered in respect thereof
or (ii) evidencing a Security that has been acquired from an Affiliate
(other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two years
after the last date on which the Company or any Affiliate of the
Company was an owner of such Security, in each case, bear the Private
18
Placement Legend, unless otherwise agreed by the Company (with written
notice thereof to the Trustee).
SECTION 217. RESTRICTIVE LEGENDS.
Each Global Security, and each Physical Security that
constitutes a Restricted Security shall bear the legend (the "PRIVATE PLACEMENT
LEGEND") as set forth in EXHIBIT B-1 on the face thereof until after the second
anniversary of the later of (i) the later of the Issue Date or the last date on
which Securities were issued pursuant to the Initial Purchasers' Option, and
(ii) the last date on which the Company or any Affiliate of the Company was the
owner of such Security (or any predecessor security) (or such shorter period of
time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) (or such longer period of time as may be required under
the Securities Act or applicable state securities laws in the Opinion of Counsel
for the Company delivered to the Trustee, unless otherwise agreed between the
Company and the Holder thereof). Any certificate evidencing a Security (and all
Securities issued in exchange therefor or in substitution thereof) issued before
May 20, 2004 shall bear the Canadian Legend.
Each Global Security shall also bear the legend as set forth
in EXHIBIT B-2.
SECTION 218. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed by the Company on
the basis of a 360-day year composed of twelve 30-day months. Each rate of
interest which is calculated with reference to a period (the "DEEMED INTEREST
PERIOD") that is less than the actual number of days in the calendar year of
calculation is, for the purposes of the Interest Act (Canada), equivalent to a
rate based on a calendar year calculated by multiplying such number of days in
the Deemed Interest Period. The amount of interest payable for any period
shorter than a full quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in the period.
SECTION 219. RANKING.
The Securities constitute, and will constitute, senior
unsecured and unsubordinated obligations of the Company, ranking equally in
right of payment all other existing and future senior unsecured and
unsubordinated obligations of the Company.
SECTION 220. ADDITIONAL INTEREST AMOUNT.
With respect to references in this Indenture to the payment of
interest on any Security, such reference shall be deemed to include the payment
of Additional Interest Amount to the extent that, in such context, Additional
Interest Amount is, was or would be payable.
ARTICLE THREE
REDEMPTION AND PURCHASE OF SECURITIES
19
SECTION 301. RIGHT OF REDEMPTION; NO SINKING FUND.
Redemption of the Securities, as permitted by any provision of
this Indenture, shall be made in accordance with this Article Three.
Except as provided in Section 308 hereof, the Company will not
have the right to redeem any Securities prior to January 20, 2009. On or after
January 20, 2009, the Company may, at its option, redeem the Securities, in
whole or in part, at a Redemption Price equal to 100% of the principal amount of
the Securities to be redeemed, together with accrued and unpaid interest to, but
excluding, the Redemption Date.
No sinking fund is provided for the Securities.
SECTION 302. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to Section
301 or Section 308 of this Indenture, it shall notify the Trustee at least 15
days prior to the mailing of the notice of redemption (unless a shorter notice
period shall be satisfactory to the Trustee) of the Redemption Date, the
aggregate principal amount of Securities to be redeemed and the Redemption
Price.
SECTION 303. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or in a method the Trustee deems fair and reasonable. The Trustee shall make the
selection from Securities outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal amount of Securities
that have denominations larger than $1,000 principal amount. Securities and
portions of them it selects shall be in amounts of $1,000 principal amount or
positive integral multiples of $1,000 principal amount. The Trustee shall
promptly notify the Company in writing of the Securities selected for redemption
and the principal amount thereof to be redeemed.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed, solely for the purposes of determining the aggregate principal amount of
the Securities to be redeemed by the Company, to be the portion selected for
redemption. Securities which have been converted during a selection of
Securities to be redeemed may be treated by the Trustee as outstanding for the
purpose of such selection.
The Registrar need not transfer or exchange any Securities
selected for redemption, except the unredeemed portion of the Securities
redeemed in part. Also, the Registrar need not transfer or exchange any
Securities for a period of 15 days before selecting Securities to be redeemed.
SECTION 304. NOTICE OF REDEMPTION.
20
Subject to Section 308 of this Indenture, at least 30 days but
not more than 60 days before a Redemption Date, the Company shall mail by
first-class mail a notice of redemption to each Holder whose Securities are to
be redeemed.
The notice shall identify the Securities and the aggregate
principal amount thereof to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price plus the
amount of accrued and unpaid interest to be paid on
the Securities called for redemption;
(iii) the then current Conversion Rate
and Conversion Price;
(iv) the name and address of the Paying
Agent and Conversion Agent;
(v) the date on which the right to
convert the principal of the Securities called for
redemption will terminate and the place or places
where such Securities may be surrendered for
conversion;
(vi) that Holders who want to convert
Securities must satisfy the requirements in Article
Ten;
(vii) whether pursuant to a Company Cash
Conversion Option the Company will deliver cash in
lieu of some or all of the Common Shares issuable
upon the conversion of any Securities called for
redemption, or if a combination of cash and Common
Shares, the number of Common Shares per $1,000
principal amount of Securities for which cash will be
delivered in lieu of such Common Shares to be
delivered, and the method for calculating the amount
of cash to be delivered per Common Share;
(viii) the paragraph of the Securities
pursuant to which the Securities are to be redeemed;
(ix) if such Securities are being
redeemed pursuant to Section 308 of this Indenture, a
description of the procedures which a Holder must
follow if it chooses to exercise its right to not
have its Securities redeemed;
(x) if such Securities are being
redeemed pursuant to Section 308 of this Indenture,
that Holders will be entitled to withdraw their
election to not have Securities redeemed if the
Company (if acting as its own Paying Agent), or the
Paying Agent, receives, not later than the Close of
Business on the Business Day immediately preceding
the Redemption Date, a letter or telegram, telex or
facsimile transmission (receipt of which is confirmed
and promptly followed by a letter) setting forth the
name of
21
the Holder, and a statement that such Holder is
withdrawing its election to not have a specified
principal amount of Securities redeemed, the
certificate numbers of such Securities being
withdrawn, if applicable, and the principal amount,
if any, of the Securities that remain subject to the
Notice of Election;
(xi) that Securities called for
redemption must be surrendered to the Paying Agent to
collect the Redemption Price;
(xii) if (A) the Securities are to be
redeemed pursuant to Section 301 hereof and (B) fewer
than all the Securities then outstanding are to be
redeemed, the identification and aggregate principal
amount of the particular Securities to be redeemed;
(xiii) that, unless the Company shall
default in the payment of the Redemption Price,
interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and that
the Securities will cease to be convertible after the
Close of Business on the Business Day immediately
preceding the Redemption Date; and
(xiv) the CUSIP number or numbers, as the
case may be, of the Securities.
The date on which the right to convert the principal of the
Securities called for redemption will terminate shall be at the Close of
Business on the Business Day immediately preceding the Redemption Date.
At the Company's request, upon reasonable prior notice, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense; provided that the form and content of such notice shall be
prepared by the Company.
SECTION 305. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date at the Redemption Price
plus accrued and unpaid interest to, but excluding, the Redemption Date, except
for Securities which are converted in accordance with the terms of this
Indenture or, if such Securities are being redeemed pursuant to Section 308
hereof, Securities for which a Holder has elected not to have its Securities
redeemed pursuant to Section 308 hereof, and, on and after such date (unless the
Company shall default in the payment of the Redemption Price), such Securities
shall cease to bear interest. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price plus accrued interest to, but
excluding, the Redemption Date, unless the Redemption Date is an interest
payment date, in which case the accrued interest will be paid in the ordinary
course.
SECTION 306. DEPOSIT OF REDEMPTION PRICE.
Prior to 11:00 A.M. on the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company is acting as its own Paying
Agent, segregate and hold in trust
22
in accordance with Section 204) an amount of money in immediately available
funds on the Redemption Date sufficient to pay the Redemption Price of and
accrued interest on all Securities to be redeemed on that date. The Paying Agent
shall return to the Company, as soon as practicable, any money not required for
that purpose.
SECTION 307. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for the Holder a new
Security or Securities in an aggregate principal amount equal to the unredeemed
portion of the Security surrendered.
If any Security selected for partial redemption is converted
in part, the converted portion of such Security shall be deemed to be the
portion selected for redemption.
SECTION 308. REDEMPTION FOR TAX REASONS.
The Company may, at its option, redeem the Securities, in
whole but not in part, at a Redemption Price equal to 100% of the principal
amount thereof together with accrued and unpaid interest, if any, to, but
excluding, the Redemption Date, if the Company has become or would become
obligated to pay to the Holders Additional Amounts (which are more than a de
minimis amount) as a result of any amendment or change occurring after December
2, 2003 in the laws or any regulations of Canada or any Canadian political
subdivision or taxing authority, or any change occurring after December 2, 2003
in the interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency, taxing authority or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory or administrative determination); provided the
Company cannot avoid these obligations by taking reasonable measures available
to it and that it delivers to the Trustee an opinion of Canadian legal counsel
specializing in taxation and an Officers' Certificate attesting to such change
and obligation to pay Additional Amounts. The Company will not and will not
cause any Paying Agent or the Trustee to deduct from such Redemption Price any
amounts on account of, or in respect of, any Canadian Taxes other than Excluded
Taxes (except in respect of certain Excluded Holders). In such event, the
Company will give the Trustee and the Holders of the Securities not less than 30
days' nor more than 60 days' notice of this redemption pursuant to Section 304,
except that (i) the Company will not give notice of redemption earlier than 60
days prior to the earliest date on or from which it would be obligated to pay
any such Additional Amounts, and (ii) at the time the Company gives the notice,
the circumstances creating its obligation to pay such Additional Amounts remain
in effect.
Upon receiving such notice of redemption, each Holder who does
not wish to have the Company redeem its Securities pursuant to this Section 308
can elect to (i) convert its Securities pursuant to Article Ten or (ii) not have
its Securities redeemed, provided that no Additional Amounts will be payable by
the Company on any payment of interest or principal with respect to the
Securities after such Redemption Date. All future payments will be subject to
the deduction or withholding of any Canadian Taxes required to be deducted or
withheld.
Where no such election is made, the Holder will have its
Securities redeemed without any further action. If a Holder does not elect to
convert its Securities pursuant to Article
23
Ten but wishes to elect to not have its Securities redeemed pursuant to clause
(ii) of the preceding paragraph, such Holder must deliver to the Company (if the
Company is acting as its own Paying Agent), or to a Paying Agent designated by
the Company for such purpose in the notice of redemption, a written Notice of
Election upon Tax Redemption (the "NOTICE OF ELECTION") on the back of the
Securities, or any other form of written notice substantially similar to the
Notice of Election, in each case, duly completed and signed, so as to be
received by the Paying Agent no later than the Close of Business on a Business
Day at least five Business Days prior to the Redemption Date.
A Holder may withdraw any Notice of Election by delivering to
the Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company in the notice of redemption, a written notice of
withdrawal prior to the Close of Business on the Business Day prior to the
Redemption Date.
SECTION 309. PURCHASE AT THE OPTION OF HOLDERS UPON A
DESIGNATED EVENT.
In the event of a Designated Event with respect to the
Company, the Company will be required to make an offer to purchase for cash
("DESIGNATED EVENT PURCHASE OFFER") all outstanding Securities in positive
integral multiples of $1,000 principal amount at a price equal to 100% of the
principal amount of such Securities ("DESIGNATED EVENT PURCHASE PRICE") plus any
accrued and unpaid interest to, but excluding, the Designated Event Purchase
Date. The Company shall be required to purchase Securities in respect of which
such offer is accepted by a Holder no later than 30 Business Days after a
Designated Event Notice has been mailed ("DESIGNATED EVENT PURCHASE DATE").
Within 30 Business Days after the occurrence of a Designated
Event with respect to the Company, the Company shall mail to the Trustee and all
Holders of the Securities at their addresses shown in the register of the
Registrar, and to beneficial owners of the Securities as may be required by
applicable law, a notice (the "DESIGNATED EVENT NOTICE") of the occurrence of
such Designated Event and the Designated Event Purchase Offer arising as a
result thereof. The Company shall cause a copy of the Designated Event Notice to
be published at the expense of the Company in an Authorized Newspaper.
Each Designated Event Notice shall state:
(i) that a Designated Event has
occurred and a Designated Event Purchase Offer is
being made pursuant to Section 309 of this Indenture
and that all Securities validly tendered and not
withdrawn will be purchased pursuant to the terms of
such Section 309;
(ii) the events causing the Designated
Event;
(iii) the date of such Designated Event;
(iv) the last date by which the Holder
must accept the Designated Event Purchase Offer and
by which the Securities to be purchased by the
Company thereunder must be tendered;
24
(v) the Designated Event Purchase
Price, plus the amount of accrued interest to be paid
on the Securities to be purchased;
(vi) the Designated Event Purchase Date;
(vii) the name and address of the Paying
Agent and the Conversion Agent;
(viii) the then existing Conversion Rate
and any adjustments to the Conversion Rate as a
result of the Designated Event;
(ix) that Securities with respect to
which a Designated Event Purchase Offer has been
accepted by the Holder may be converted, if otherwise
convertible, only if such acceptance has been
withdrawn in accordance with the terms of this
Indenture;
(x) a description of the procedures
that Holders must follow in order to tender their
Securities (or portions thereof) for payment, and the
procedures that Holders must follow in order to
withdraw an election to tender Securities (or
portions thereof) for payment;
(xi) the place or places where such
Securities may be surrendered for conversion; and
(xii) the CUSIP number or numbers, as the
case may be, of the Securities.
To accept the Designated Event Purchase Offer, a Holder of
Securities must deliver to the Company (if the Company is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for such purpose
in the Designated Event Notice and the Trustee, on or before the Close of
Business on the third Business Day immediately preceding the Designated Event
Purchase Date, (i) written notice of acceptance of the Designated Event Purchase
Offer in the form set forth in the Designated Event Purchase Offer Acceptance
Notice on the back of the Securities ("DESIGNATED EVENT PURCHASE NOTICE"), or
any other form of written notice substantially similar to the Designated Event
Purchase Notice, in each case, duly completed and signed, with appropriate
signature guarantee, and (ii) such Securities that the Holder wishes to tender
for purchase by the Company pursuant to the Designated Event Offer, duly
endorsed for transfer to the Company. Such Holder of such Securities shall be
entitled to receive from the Company (if it is acting as its own Paying Agent),
or such Paying Agent a nontransferable receipt of deposit evidencing such
deposit.
A Holder may withdraw any acceptance of the Designated Event
Purchase Offer by delivering a written notice of withdrawal delivered to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company, at any time prior to the Close of Business on the
Business Day prior to the Designated Event Purchase Date, specifying the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted (if applicable), the principal amount of the Security with
respect to which such notice of withdrawal is being submitted, and the principal
amount, if any, of such Security which
25
remains subject to the original Designated Event Purchase Notice and which has
been or will be delivered for purchase by the Company. The Paying Agent shall
promptly notify the Company of the receipt by it of any Designated Event
Purchase Notice or written notice of withdrawal thereof.
Prior to 11:00 A.M. New York City time on the Designated Event
Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust in accordance with Section 204) an amount of money in immediately
available funds (to be available on the Designated Event Purchase Date)
sufficient to pay the Designated Event Purchase Price plus accrued and unpaid
interest of all of the Securities which are to be purchased on that date.
Upon receipt by the Trustee (or other Paying Agent appointed
by the Company) of the Designated Event Purchase Notice, the Holder of the
Securities in respect of which such Designated Event Purchase Notice was given
shall (unless such Designated Event Purchase Notice is validly withdrawn)
thereafter be entitled to receive solely the Designated Event Purchase Price,
plus accrued and unpaid interest with respect to such Security. Such Designated
Event Purchase Price plus accrued and unpaid interest shall be paid to such
Holder, subject to receipt of Securities by the Trustee (or other Paying Agent
appointed by the Company) on the later of (x) the Designated Event Purchase Date
(provided the Holder has satisfied the conditions in this Section 309) and (y)
the time of delivery of such Security to the Trustee (or other Paying Agent
appointed by the Company) by the Holder thereof in the manner required by this
Section 309. Securities in respect of which a Designated Event Purchase Notice
has been given by the Holder thereof, may not be converted pursuant to Article
Ten hereof on or after the date of the delivery of such Designated Event
Purchase Notice unless such Designated Event Purchase Notice has first been
validly withdrawn.
If the Company (if it is acting as its own Paying Agent), or a
Paying Agent holds money sufficient to pay the Designated Event Purchase Price
for all the Securities or portions thereof that are to be purchased as of the
Designated Event Purchase Date, then on and after the Business Day following
such Designated Event Purchase Date: (i) such Securities will cease to be
outstanding, (ii) interest on the Securities will cease to accrue, and (iii) all
rights of the Holders of such Securities will terminate, whether or not
book-entry transfer of the Securities has been made or the Securities have been
delivered to the Trustee or Paying Agent, other than the right to receive the
Designated Event Purchase Price upon delivery of the Securities.
If any Security shall not be paid upon surrender thereof for
purchase, the principal shall, until paid, bear interest from the Designated
Event Purchase Date at the rate borne by such Security on the principal amount
of such Security and shall continue to be convertible.
Any Security which is to be submitted for purchase only in
part shall be delivered pursuant to this Section 309 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder
thereof or its attorney duly authorized in writing), and the Company shall
prepare and execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities, of any authorized
26
denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Security not submitted for
purchase.
Notwithstanding anything herein to the contrary, (i) if a
Designated Event Purchase Offer is determined to constitute a "tender offer"
under the Exchange Act or an "issuer bid" under applicable Canadian Securities
Laws (which terms, as used herein, include any successor provision thereto); the
Company, to the extent applicable, will comply with all applicable tender offer
rules under the Exchange Act, including Rules 13e-4 and 14e-1, any Canadian
Securities Laws and file a Schedule TO or any other schedules required under the
Exchange Act rules or Canadian Securities Laws which may then be applicable; and
(ii) the Company may not purchase Securities pursuant to a Designated Event
Purchase Offer if there has occurred and is continuing an Event of Default with
respect to the Securities, other than a Default in making a Designated Event
Purchase Offer or in the payment of the Designated Event Purchase Price with
respect to the Securities.
As used in this Section 309 of the Indenture and in the
Securities:
A "DESIGNATED EVENT" will be deemed to have occurred upon a
Fundamental Change or Termination of Trading; provided, that any such
Fundamental Change or Termination of Trading occurring on or prior to the date
which is five years plus one day after the later of the Issue Date and the last
date on which Securities were issued pursuant to the Initial Purchasers' Option
shall not be deemed a Designated Event unless such Fundamental Change or
Termination of Trading also constitutes a Change in Control.
A "CHANGE IN CONTROL" of the Company shall be deemed to have
occurred at such time as:
(i) any Person, including its
Affiliates and Associates, becomes the "beneficial
owner" (as such term is used in Rule 13d-3 under the
Exchange Act or any successor rule or regulation
promulgated under the Exchange Act), of more than 50%
of the total number of votes attached to its share
capital entitled to general voting rights
(collectively, the "VOTING SECURITIES") or other
securities into which the Voting Securities are
reclassified or changed; provided, however, that a
person shall not be deemed a beneficial owner of, or
to own beneficially, (A) any securities tendered
pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's
Affiliates or Associates until such tendered
securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial
ownership (1) arises solely as a result of a
revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to the applicable
rules and regulations under the Exchange Act, and (2)
is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act; or
(ii) there shall be consummated any
Reorganization in which the Company is not the
continuing or surviving corporation or pursuant to
which the Common Shares would be converted into cash,
securities or
27
other property, in each case, other than a
Reorganization in which the holders of the Voting
Securities immediately prior to such transaction
have, directly or indirectly, at least a majority of
the voting shares of the continuing or surviving
corporation immediately after such transaction.
Notwithstanding the foregoing provisions of this Section 309,
a Change in Control shall not be deemed to have occurred by virtue of the
Company, any Subsidiary, any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary, or any person holding Common
Shares for or pursuant to the terms of any such employee benefit plan, becoming
the beneficial owner of Voting Securities, whether in excess of 50% or
otherwise.
"ASSOCIATE" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
A "FUNDAMENTAL CHANGE" means any transaction or event (whether
by means of an exchange offer, liquidation, tender offer, Reorganization or
otherwise) in connection with which all or substantially all of the Common
Shares shall be exchanged for, converted into, acquired for or constitute solely
the right to receive, consideration which is not all or substantially all common
shares that (i) are listed on, or immediately after the transaction or event
will be listed on, the Toronto Stock Exchange or a United States national
securities exchange, or (ii) are approved, or immediately after the transaction
or event will be approved, for quotation on the Nasdaq National Market or any
similar United States system of automated dissemination of quotations of
securities prices.
A "TERMINATION OF TRADING" shall be deemed to have occurred if
the Common Shares (or other securities or property into which the Securities are
then convertible, including, without limitation, Prescribed Securities) are
neither listed for trading on the Toronto Stock Exchange or a United States
national securities exchange nor approved for trading on the Nasdaq National
Market.
SECTION 310. PURCHASE OF SECURITIES BY THE COMPANY AT
THE OPTION OF HOLDER
Securities shall be purchased by the Company at the option of
the Holder on January 20, 2009, December 1, 2013, and December 1, 2018 (each, a
"PURCHASE DATE"), at a purchase price equal to 100% of the principal amount of
those Securities (the "PURCHASE PRICE") plus accrued and unpaid interest to, but
excluding, the Purchase Date; provided that, with respect to the December 1,
2013 and December 1, 2018 Purchase Dates, such interest will be paid to Holders
of record on the Close of Business on the record date immediately preceding such
Purchase Date.
Purchases of Securities hereunder shall be made, at the option
of the Holder thereof, upon delivery (i) to the Company (if it is acting as its
own Paying Agent), or to a Paying Agent by the Holder of a written notice of
purchase (a "PURCHASE NOTICE") at any time during the period beginning on the
opening of business on the date that is 25 Business Days prior to the relevant
Purchase Date and ending at the Close of Business on the fifth Business Day
prior
28
to such Purchase Date and (ii) of such Security to the Paying Agent at any time
after delivery of the Purchase Notice (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section 310 only if the
Security so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Purchase Notice.
The Purchase Notice shall state (i) the certificate number of
the Security which the Holder will deliver to be purchased or the appropriate
Depositary procedures if Physical Securities have not been issued, (ii) the
portion of the principal amount of the Security which the Holder will deliver to
be purchased, which portion must be in principal amounts of $1,000 or a positive
integral multiple of $1,000, and (iii) that such Security shall be purchased by
the Company as of the Purchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture.
The Company shall purchase from the Holder thereof, pursuant
to this Section 310, a portion of a Security, if the principal amount of such
portion is $1,000 or a positive integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 310 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Purchase Date and the time of book-entry transfer or delivery of the Security.
A Holder may withdraw any Purchase Notice by delivering a
written notice of withdrawal delivered to the Company (if it is acting as its
own Paying Agent), or to a Paying Agent designated by the Company, at any time
prior to the Close of Business on the Business Day immediately preceding the
Purchase Date, specifying the certificate number of the Security in respect of
which such notice of withdrawal is being submitted (if applicable), the
principal amount of the Security with respect to which such notice of withdrawal
is being submitted, and the principal amount of such Security, if any, which
remains subject to the original Purchase Notice and which has been or will be
delivered for purchase by the Company. The Paying Agent shall promptly notify
the Company of the receipt by it of any Purchase Notice or written notice of
withdrawal thereof.
The Company shall, no less than twenty-five Business Days
prior to the Purchase Date, give notice to Holders at their addresses shown in
the register of the Registrar and to beneficial owners as required by law (the
"COMPANY PURCHASE NOTICE"). The Company will also give notice to beneficial
owners as required by applicable law.
The Company Purchase Notice shall:
(i) state the Purchase Price and the
Purchase Date to which the Company Purchase Notice
relates;
(ii) include a form of Purchase Notice;
29
(iii) state the name and address of the
Trustee (or other Paying Agent or Conversion Agent
appointed by the Company);
(iv) state that Securities must be
surrendered to the Trustee (or other Paying Agent
appointed by the Company) to collect the Purchase
Price;
(v) if the Securities are then
convertible, state that Securities as to which a
Purchase Notice has been given may be converted only
if the Purchase Notice is withdrawn in accordance
with the terms of this Indenture; and
(vi) state the CUSIP number of the
Securities.
The Company Purchase Notice may be given by the Company or, at
the Company's request, upon reasonable prior notice, the Trustee shall give such
Company Purchase Notice in the Company's name and at the Company's expense.
Upon receipt by the Trustee (or other Paying Agent appointed
by the Company) of the Purchase Notice, the Holder of the Securities in respect
of which such Purchase Notice was given shall (unless such Purchase Notice is
validly withdrawn) thereafter be entitled to receive solely the Purchase Price,
plus accrued and unpaid interest with respect to such Security. Such Purchase
Price plus accrued and unpaid interest shall be paid to such Holder, subject to
receipt of funds and/or Securities by the Trustee (or other Paying Agent
appointed by the Company) on the later of (x) the Purchase Date (provided the
Holder has satisfied the conditions in this Section 310) and (y) the time of
delivery of such Security to the Trustee (or other Paying Agent appointed by the
Company) by the Holder thereof in the manner required by this Section 310.
Securities in respect of which a Purchase Notice has been given by the Holder
thereof may not be converted pursuant to Article Ten hereof on or after the date
of the delivery of such Purchase Notice unless such Purchase Notice has first
been validly withdrawn.
Prior to 11:00 A.M., New York City time, on the Purchase Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust in
accordance with Section 204) an amount of money in immediately available funds
(to be available on the Purchase Date) sufficient to pay the Purchase Price plus
accrued and unpaid interest of all of the Securities which are to be purchased
on that date.
If the Trustee or other Paying Agent appointed by the Company,
or the Company or a Subsidiary or Affiliate of either of them, if such entity is
acting as the Paying Agent, holds cash sufficient to pay the aggregate Purchase
Price, including accrued and unpaid interest of all the Securities, or portions
thereof that are to be repurchased as of the Purchase Date, on or after the
Purchase Date: (i) such Securities will cease to be outstanding, (ii) interest
on the Securities will cease to accrue, and (iii) all other rights of the
Holders of such Securities will terminate, whether or not book-entry transfer of
the Securities has been made or the Securities have been delivered to the
Trustee or Paying Agent, other than the right to receive the Purchase Price and,
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with respect to the January 20, 2009 Purchase Date, accrued and unpaid interest
upon delivery of the Securities.
If any Security shall not be paid upon surrender thereof for
purchase, the principal shall, until paid, bear interest from the Purchase Date
at the rate borne by such Security on the principal amount of such Security and
shall continue to be convertible.
Any Security which is to be submitted for purchase only in
part shall be delivered pursuant to this Section 310 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder
thereof or its attorney duly authorized in writing), and the Company shall
prepare and execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities, of any authorized denomination as requested by such Holder, of
the same tenor and in aggregate principal amount equal to the portion of such
Security not submitted for purchase.
Notwithstanding anything herein to the contrary, (i) if the
purchase of Securities at the option of Holders is determined to constitute a
"tender offer" under the Exchange Act or an "issuer bid" under applicable
Canadian Securities Laws (which terms, as used herein, include any successor
provision thereto); the Company, to the extent applicable, will comply with all
applicable tender offer rules under the Exchange Act, including Rules 13e-4 and
14e-1, any Canadian Securities Laws and file a Schedule TO or any other
schedules required under the Exchange Act rules or Canadian Securities Laws
which may then be applicable; and (ii) the Company may not purchase Securities
at the option of Holders if there has occurred and is continuing an Event of
Default with respect to the Securities, other than a Default in the payment of
the Purchase Price with respect to the Securities.
Provided that the Securities are otherwise convertible
pursuant to Article Ten, any Securities required to be purchased under this
Section 310, unless surrendered for conversion before the Close of Business on
the Purchase Date, may be deemed to be purchased from the Holders of such
Securities for an amount in cash not less than the Purchase Price, by one or
more purchasers who may agree with the Company to purchase such Securities from
the Holders, to convert them into Common Shares of the Company and to make
payment for such Securities to the Trustee in trust for such Holders.
SECTION 311. CONVERSION ARRANGEMENT ON CALL FOR
REDEMPTION.
In connection with any redemption of Securities, the Company
may arrange, in lieu of redemption, for the purchase and conversion of any
Securities called for redemption by an agreement with one or more purchasers to
purchase all or a portion of such Securities by paying to the Trustee in trust
for the Holders whose Securities are to be so purchased, on or before the Close
of Business on the Redemption Date, an amount that, together with any amounts
deposited with the Trustee by the Company for redemption of such Securities, is
not less than the Redemption Price, together with interest, if any, accrued to,
but excluding the Redemption Date, of such Securities. Notwithstanding anything
to the contrary contained in this Article Three, the obligation of the Company
to pay the Redemption Price of such Securities, including all accrued
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interest, if any, shall be deemed to be satisfied and discharged to the extent
such amount is so paid by such purchasers, but no such agreement shall relieve
the Company of its obligation to pay such Redemption Price and such accrued
interest, if any. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Ten) surrendered by such purchasers for conversion, all as
of immediately prior to the Close of Business on the Redemption Date, subject to
payment of the above amount as aforesaid. The Trustee shall hold and pay to the
Holders whose Securities are selected for redemption any such amount paid to it
for purchase and conversion in the same manner as it would moneys deposited with
it by the Company for the redemption of Securities. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, rights, immunities, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Company agrees to indemnify
the Trustee from, and hold it harmless against, any and all loss, liability or
expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses (including counsel fees and
expenses) incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture except to
the extent arising from its bad faith, willful misconduct or negligence.
ARTICLE FOUR
COVENANTS
SECTION 401. PAYMENT OF SECURITIES.
The Company shall promptly pay all amounts due with respect to
the Securities on the dates and in the manner provided in the Securities or
pursuant to this Indenture. All such amounts shall be considered paid on the
date due if the Paying Agent holds (or, if the Company is acting as Paying
Agent, if the Company has segregated and holds in trust in accordance with
Section 204) on that date money sufficient to pay the amount then due with
respect to the Securities.
The Company shall promptly pay defaulted interest (including,
to the extent permitted by applicable law, interest payable on the defaulted
interest) at the rate borne by the Securities.
SECTION 402. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an Affiliate of the Trustee or Registrar) where Securities may be surrendered
for registration of transfer or exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee
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of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as an agency of the Company in accordance with Section 203.
SECTION 403. REPORTS.
(a) The Company will promptly provide to the Trustee
and shall, upon request, provide to any Holder or beneficial owner of
Securities or prospective purchaser of Securities that so requests, the
information required to be delivered pursuant to Rule 144A(d)(4) until
such time as the Securities and the underlying Common Shares have been
registered by the Company for resale under the Securities Act pursuant
to the Registration Rights Agreement. In addition, the Company will
furnish such Rule 144A(d)(4) information if, at any time while the
Securities or the Common Shares are issuable upon conversion of the
Securities are restricted securities within the meaning of the
Securities Act, the Company is not subject to the informational
requirements of the Exchange Act.
(b) The Company will comply with the provisions of
TIA Section 314(a).
(c) The Company will promptly provide to the Trustee
copies of its annual report to shareholders, containing audited
financial statements, and any other financial reports which the Company
furnishes to its shareholders.
(d) Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on the Officers' Certificate).
SECTION 404. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year (beginning with the fiscal year ending on December
31, 2003) of the Company and otherwise upon the demand of the Trustee an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default by the Company in performing any of its
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obligations under this Indenture or the Securities. If they do know of any such
Default or Event of Default, the certificate shall describe the Default or Event
of Default and its status.
SECTION 405. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (in each case,
to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 406. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its Subsidiaries in
accordance with the respective organizational documents of each Subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate existence of any
Subsidiary, if in the judgment of the Board of Directors (i) such preservation
or existence is not material to the conduct of business of the Company and (ii)
the loss of such right, license or franchise or the dissolution of such
Subsidiary does not have a material adverse impact on the Holders.
SECTION 407. PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by or on behalf of the Company under or with
respect to the Securities (including, without limitation, any Additional
Interest Amount) 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 (including, without limitation,
penalties, interest and other liabilities related thereto) imposed or levied by
or on behalf of the Government of Canada or of any province or territory thereof
or by any authority or agency therein or thereof having power to tax, including
without limitation any taxes imposed under Part XIII of the Tax Act ("CANADIAN
TAXES"), unless the Company is required by law or the interpretation or
administration thereof, to withhold or deduct any amounts for, or on account of,
Canadian Taxes. If the Company is so required to withhold or deduct any amount
for or on account of Canadian Taxes from any payment made under or with respect
to the Securities, the Company will pay as additional interest such additional
amounts ("ADDITIONAL AMOUNTS") as may be necessary so that the net amount
received by each Holder after such withholding or deduction (including any
withholding or deduction required to be made in respect of Additional Amounts)
will not be less than the amount the Holder would have received if such Canadian
Taxes had not been withheld or deducted and similar payment (the term
"Additional Amounts" shall also include any such similar payments) will also be
made by the Company to Holders (other than Excluded Holders) of Securities that
are not subject to withholding but are
34
required to pay tax directly on amounts otherwise subject to withholding;
provided, however, that no Additional Amounts will be payable with respect to:
(a) a payment made to a Holder or former Holder of
Securities (an "EXCLUDED HOLDER") in respect of the beneficial owner
thereof:
(i) with which the Company does not
deal at arm's length (within the meaning of the Tax
Act) at the time of making such payment;
(ii) that is subject to such Canadian
Taxes by reason of its failure to comply with any
certification, identification, information,
documentation or other reporting requirement if
compliance is required by law, regulation,
administrative practice or an applicable treaty as a
precondition to exemption from, or a reduction in the
rate of deduction or withholding of, such Canadian
Taxes (provided that in the case of any imposition or
change in any such certification, identification,
information, documentation or other reporting
requirement which applies generally to Holders of
Securities who are not residents of Canada, at least
sixty (60) days prior to the effective date of any
such imposition or change, the Company shall give
written notice, in the manner provided in this
Indenture, to the Trustee and the Holders of the
Securities then outstanding of such imposition or
change, as the case may be, and provide the Trustee
and such Holders with such forms or documentation, if
any, as may be required to comply with such
certification, identification, information,
documentation, or other reporting requirement); or
(iii) that is subject to such Canadian
Taxes by reason of its carrying on business in or
otherwise being connected with Canada or any province
or territory thereof otherwise than by the mere
holding of such Securities or the receipt of payments
or exercise of any enforcement rights, thereunder; or
(b) any estate, inheritance, gift, sales, excise,
transfer, personal property or similar tax, assessment or governmental
charge ("EXCLUDED TAXES").
The Company will (1) make such withholding or deduction and
(2) remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law.
The Company will furnish to the Trustee, within thirty (30)
days after the date the payment of any Canadian Taxes is due pursuant to
applicable law in respect of such Securities, certified copies of tax receipts
evidencing such payment by the Company.
The Company will indemnify and hold harmless each Holder of
any Securities (other than an Excluded Holder or with respect to Excluded Taxes)
and upon written request reimburse each such Holder for the amount of:
(i) any Canadian Taxes so levied or
imposed and paid by such Holder as a result of
payments made under or with respect to the
35
Securities (including, without limitation, any
payment of Additional Interest Amounts);
(ii) any liability (including penalties,
interest and expenses) arising therefrom or with
respect thereto; and
(iii) any Canadian Taxes levied or
imposed and paid by the Holder with respect to any
reimbursement under clause (i) or (ii) above.
Whenever in this Indenture there is mentioned, in any context,
the payment of principal and interest or any other amount payable under or with
respect to any Security, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this Section to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof.
Anything in this Indenture to the contrary notwithstanding,
the covenants and provisions of this Section 407 shall survive any termination
or discharge of this Indenture, and the repayment of all or any of the
Securities, and shall remain in full force and effect.
SECTION 408. NOTICE OF DEFAULT.
In the event that any Default or Event of Default shall occur,
the Company will give prompt written notice of such Default or Event of Default
to the Trustee.
SECTION 409. USE OF PROCEEDS; REPAYMENT.
The Company will not, and will cause each of its Subsidiaries
not to, designate or direct the use of the proceeds of the sale and issuance of
the Securities specifically to fund any activities or business with any entity
or individual with respect to which U.S. persons are prohibited from doing
business under the Sanctions Regulations.
The Company will not, directly or indirectly, repay the
Securities or any portion thereof from any proceeds and funds sourced from
activities, operations or sales with entities or individuals with respect to
which U.S. persons are prohibited from doing business under the Sanctions
Regulations.
SECTION 410. FURTHER INSTRUMENTS AND ACTS.
The Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper or as the
Trustee may reasonably request to carry out more effectively the purposes of
this Indenture.
ARTICLE FIVE
SUCCESSORS
SECTION 501. WHEN COMPANY MAY MERGE, ETC.
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The Company shall not consolidate, amalgamate or merge with or
into any other Person, enter into a binding share exchange or sell, convey,
transfer or lease all or substantially all of its properties and assets to
another Person (including in any such case under a statutory arrangement) unless
(a) the Company shall be the continuing corporation or (b) the resulting,
surviving or transferee Person is a corporation organized and existing under the
laws of the United States, any State thereof, the District of Columbia, the laws
of Canada or any province or territory thereof; such Person assumes by
supplemental indenture all the obligations of the Company under the Securities
and this Indenture; and immediately after giving effect to the transaction, no
Default or Event of Default shall exist; provided, however, for purposes of the
foregoing, the sale, conveyance, transfer or lease (in a single transaction or a
series of transactions) of the properties or assets of one or more Subsidiaries
(other than to the Company or another wholly-owned Subsidiary) which, if such
properties or assets were directly owned by the Company, would constitute all or
substantially all of its properties and assets on a consolidated basis, shall be
deemed to be a sale, conveyance, transfer or lease of all or substantially all
of the Company's properties and assets.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction governed by the first paragraph of this
Section 501 an Officers' Certificate to the foregoing effect and an Opinion of
Counsel, which may rely upon such Officers' Certificate as to the absence of
Defaults and Events of Default, stating that the proposed transaction and such
supplemental indenture will, upon consummation of the proposed transaction,
comply with this Indenture.
SECTION 502. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or transfer or lease of all
or substantially all of the assets of the Company in accordance with Section
501, the successor person formed by such consolidation or into which the Company
is merged or to which such transfer or lease is made shall succeed to, and,
except in the case of a lease, be substituted for, and may exercise every right
and power of, and shall assume every duty and obligation of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein. When the successor assumes all obligations of the Company
hereunder, except in the case of a lease, all obligations of the predecessor
shall terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 601. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(i) the Company defaults in the payment
of the principal amount, Redemption Price, Purchase
Price, or Designated Event Purchase Price with
respect to any Security when the same becomes due and
37
payable, or the Company fails to make a Designated
Event Purchase Offer required pursuant to Section 309
hereof;
(ii) the Company defaults in the payment
of accrued and unpaid interest, if any (including
Additional Amounts and Additional Interest Amounts)
on the Securities when the same becomes due and
payable and such default continues for a period of 30
days;
(iii) the Company fails to comply with
any of its other covenants in the Securities or this
Indenture (other than those referred to in clauses
(i) and (ii) above) and such failure (or failure to
obtain a waiver thereof) continues for 60 days after
receipt of the notice specified below;
(iv) If the maturity of any of the
Company's indebtedness for money borrowed (other than
Non-Recourse Indebtedness) is accelerated because of
any default with respect to such indebtedness, at any
one time, in an amount in excess of the greater of
(i) $25.0 million and (ii) 5% of Consolidated Net
Tangible Assets, unless such acceleration is
rescinded or annulled within a period of 30 days
after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the
Securities then outstanding;
(v) the Company or any of its
Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or
proceeding,
(B) consents to the entry of an order
for relief against it in an involuntary case or
proceeding or the commencement of any case against
it,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of
its property,
(D) makes a general assignment for the
benefit of its creditors or files a proposal or other
scheme of arrangement involving the rescheduling or
composition of its indebtedness,
(E) files a petition in bankruptcy or
answer or consent seeking reorganization or relief,
or
(F) consents to the filing of such
petition or the appointment of or taking possession
by a Custodian;
(vi) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
that:
38
(A) is for relief against the Company
or any of its Significant Subsidiaries in an
involuntary case or proceeding, or
adjudicates the Company or any Significant
Subsidiary insolvent or bankrupt,
(B) appoints a Custodian of the Company
or any of its Significant Subsidiaries for
all or substantially all of the property of
the Company or any such Significant
Subsidiary, as the case may be, or
(C) orders the winding up or
liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and
in effect for 90 consecutive days.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code, the
Canadian Bankruptcy and Insolvency Act, the Companies, Creditors Arrangement Act
(Canada), or any similar U.S. or Canadian federal, state, provincial or foreign
law for the relief of debtors. The term "CUSTODIAN" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
A default under clause (iii) is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee of the default
and the default is not cured or waived within 60 days after receipt of the
notice. The notice must specify the default, demand that it be remedied and
state that the notice is a "NOTICE OF DEFAULT". If the Holders of 25% in
aggregate principal amount of the Securities then outstanding request the
Trustee to give such notice on their behalf, the Trustee shall do so. When a
default is cured, it ceases.
SECTION 602. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in Section 601(v) or (vi) with respect to the Company or any
Significant Subsidiary) occurs and is continuing, the Trustee by notice to the
Company or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding by notice to the Company and the Trustee may declare
the principal amount of the Securities plus accrued and unpaid interest, if any,
on the Securities accrued through the date of such declaration, to be
immediately due and payable. If an Event of Default specified in Section 601(v)
or (vi) with respect to the Company or any Significant Subsidiary occurs, the
principal amount of the Securities plus accrued and unpaid interest, if any,
accrued thereon through the occurrence of such event shall automatically become
and be immediately due and payable, without any declaration or other act on the
part of the Trustee or any Security Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any order or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration and if all
amounts due to the Trustee under Section 707 have been paid.
39
SECTION 603. OTHER REMEDIES.
Notwithstanding any other provision of this Indenture, if an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of amounts due
with respect to the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Security 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. All
remedies are cumulative.
SECTION 604. WAIVER OF PAST DEFAULTS.
Subject to Sections 607 and 902, the Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive any past Default or Event of Default and its consequences.
When a Default or an Event of Default is waived, it is cured and ceases for
every purpose of this Indenture.
SECTION 605. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Security Holders or would involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 606. LIMITATION ON SUITS.
Except as provided in Section 607, a Security Holder may
pursue a remedy with respect to this Indenture or the Securities only if:
(i) the Holder gives to the Trustee
written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in
aggregate principal amount of the Securities then
outstanding make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders provide to
the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(iv) the Trustee does not comply with
the request within 60 days after receipt of the
request and the offer of indemnity; and
40
(v) during such 60-day period, the
Holders of a majority in aggregate principal amount
of the Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Security Holder may not use this Indenture to prejudice the
rights of another Security Holder or to obtain a preference or priority over
another Security Holder.
SECTION 607. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of all amounts due with respect to the
Securities, on or after the respective due dates expressed in the Securities, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
Notwithstanding any other provision of this Indenture, the
right of any Holder to bring suit for the enforcement of the right to convert
the Security shall not be impaired or affected without the consent of the
Holder.
SECTION 608. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 601(i) or (ii)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount due with
respect to the Securities, including any unpaid and accrued interest.
SECTION 609. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee, any predecessor Trustee and the Security Holders allowed in any
judicial proceedings relative to the Company or its creditors or properties.
The Trustee may collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 707.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 610. PRIORITIES.
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If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 707;
Second: to Security Holders for all amounts due and unpaid on
the Securities, without preference or priority of any kind, according to the
amounts due and payable on the Securities; and
Third: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment by it to Security Holders
pursuant to this Section 610. At least 15 days before such record date, the
Trustee shall mail to each Security Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
SECTION 611. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit other than the Trustee of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 611 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 607 or a suit by Holders of more
than 10% in aggregate principal amount of the Securities then outstanding.
ARTICLE SEVEN
TRUSTEE
SECTION 701. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Trustee need perform only those
duties that are specifically set forth in this
Indenture and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith,
willful misconduct or negligence on its part, the
Trustee may conclusively rely, as to the truth of
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the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of
any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or
not they conform to the requirements of this
Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts
stated therein).
No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) the Trustee shall not be liable for
any error of judgment made in good
faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the
pertinent facts; and
(ii) the Trustee shall not be liable
with respect to any action it takes or omits to take
in good faith in accordance with a direction received
by it pursuant to Section 605.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to the provisions of this Section
701.
(e) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 702. RIGHTS OF TRUSTEE.
(a) Subject to Section 701, the Trustee may
conclusively rely and shall be protected in acting or refraining from
acting on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document; if, however, the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled during normal business hours to examine the
relevant books, records and premises of the Company, personally or by
agent or attorney upon reasonable prior notice at the sole cost of the
Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate and/or an Opinion of Counsel.
The Trustee shall not be liable for
43
any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution.
(d) The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.
(e) The Trustee may act through agents or attorneys
and shall not be responsible for the misconduct or negligence of any
agent or attorney appointed with due care.
(f) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized
or within its discretion, rights or powers conferred upon it by this
Indenture.
(g) Except with respect to Section 601, the Trustee
shall have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article Four. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default
except (i) any Default or Event of Default occurring pursuant to
Sections 601(i) and 601(ii) or (ii) any Default or Event of Default of
which a Responsible Officer of the Trustee shall have received written
notification (which notification references the Securities and this
Indenture) or obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Article Four (other than
Sections 404 and 407) is for informational purposes only and the
Trustee's receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
(h) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders pursuant to this
Indenture unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(i) The rights, privileges, protections, immunities
and benefits given to the Trustee, including without limitation, its
right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder.
(j) Subject to Section 701, in no event shall the
Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever
44
(including, but not limited to, loss of profit) irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
(k) The Trustee may request that the Company deliver
an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
SECTION 703. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, must comply
with Sections 710 and 711.
SECTION 704. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities; it shall not be accountable for
the Company's use of the proceeds from the Securities; and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 705. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing as
to which the Trustee has received notice pursuant to the provisions of this
Indenture, the Trustee shall mail to each Security Holder a notice of the
Default or Event of Default within 30 days after it occurs unless such Default
or Event of Default has been cured or waived. Except in the case of a Default or
Event of Default in payment of any amounts due with respect to any Security, the
Trustee may withhold the notice if and so long as it in good faith determines
that withholding the notice is in the interests of Security Holders.
SECTION 706. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 2004,
the Trustee shall mail to each Security Holder if required by TIA Section 313(a)
a brief report dated as of such May 15 that complies with TIA Section 313(c). In
such event, the Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Security
Holders shall be mailed to the Company and filed by the Trustee with the SEC and
each stock exchange, if any, on which the Securities are listed. The Company
shall promptly notify the Trustee when the Securities are listed on any stock
exchange (or delisted therefrom).
SECTION 707. COMPENSATION AND INDEMNITY.
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The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed upon in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and out-of-pocket expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and its directors,
employees, officers and agents against any and all loss, liability, damage,
claim or expense (including the reasonable fees and expenses of counsel and
taxes other than those based upon the income of the Trustee) incurred by it in
connection with the acceptance or administration of this trust and the
performance of its duties hereunder, including the reasonable costs and expenses
of defending itself against any claim (whether asserted by the Company, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers and duties hereunder. The Company need not pay
for any settlement made without its consent. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnification. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through the Trustee's negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section
707, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
amounts due on particular Securities.
The indemnity obligations of the Company with respect to the
Trustee provided for in this Section 707 shall survive any resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 601(v) or (vi) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 708. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 708.
The Trustee may resign by so notifying the Company in writing
30 Business Days prior to such resignation. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(i) the Trustee fails to comply with
Section 710;
(ii) the Trustee is adjudged a bankrupt
or an insolvent;
(iii) a receiver or other public officer
takes charge of the Trustee or its property; or
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(iv) the Trustee becomes incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Company's expense), the Company or the Holders of at least 10% in aggregate
principal amount of the Securities then outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 710, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Security Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 707.
SECTION 709. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee, if such successor corporation is otherwise eligible
hereunder.
SECTION 710. ELIGIBILITY, DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
SECTION 711. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
SECTION 712. APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact
47
business as trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture, and in particular in case of the enforcement
thereof on default, or in the case the Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or institution as a separate or co-trustee. The
following provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Trustee with respect thereto shall be exercisable by and vest
in such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction is incapable of
exercising such powers, rights and remedies and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee shall run to
and be enforceable by either of them.
Should any instrument in writing from the Company be required
by the separate or co-trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to it such properties, rights, powers,
trusts, duties and obligations, any and all such instruments in writing shall,
on request, be executed, acknowledged and delivered by the Company; provided,
that if an Event of Default shall have occurred and be continuing, if the
Company does not execute any such instrument within fifteen (15) days after
request therefor, the Trustee shall be empowered as an attorney-in-fact for the
Company to execute any such instrument in the Company's name and stead. In case
any separate or co-trustee or a successor to either shall die, become incapable
of acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights and powers, conferred or
imposed upon the Trustee shall be conferred or
imposed upon and may be exercised or performed by
such separate trustee or co-trustee; and
(ii) no trustee hereunder shall be
personally liable by reason of any act or omission of
any other trustee hereunder.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article.
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Any separate trustee or co-trustee may at any time appoint the Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 801. TERMINATION OF THE OBLIGATIONS OF THE
COMPANY.
The Company may terminate all of its obligations under this
Indenture if all Securities previously authenticated and delivered (other than
mutilated, destroyed, lost or stolen Securities which have been replaced or paid
as provided in Section 207) have been delivered to the Trustee for cancellation
or if:
(i) the Securities mature within one
year or all of them are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption;
(ii) the Company irrevocably deposits,
or arranges for the irrevocable deposit pursuant to
Section 311 of this Indenture, in trust with the
Trustee money or U.S. Government Obligations
sufficient to pay the principal or Redemption Price
of and any unpaid and accrued interest on the
Securities to maturity or redemption, as the case may
be. Immediately after making the deposit, the Company
shall give notice of such event to the Security
Holders;
(iii) the Company has paid or caused to
be paid all sums then payable by the Company to the
Trustee hereunder as of the date of such deposit; and
(iv) the Company has delivered to the
Trustee an Opinion of Counsel and an Officers'
Certificate stating that all conditions precedent
provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
The Company may make the deposit only during the
one-year period and only if Article Eleven permits
it.
However, the Company's obligations in Sections 202, 203, 204,
205, 206, 207, 208, 215, 216, 217, 401, 402, 407, 409, 707 and 708, Article
Eight and Article Ten shall survive until the Securities are no longer
outstanding. Thereafter the obligations of the Company in Sections 707 and 803
shall survive.
49
After a deposit pursuant to this Section 801, the Trustee upon
request shall acknowledge in writing the discharge of the obligations of the
Company under the Securities and this Indenture, except for those surviving
obligations specified above.
In order to have money available on a payment date to pay the
principal or Redemption Price of and any unpaid and accrued interest on the
Securities, the U.S. Government Obligations shall be payable as to principal and
any unpaid and accrued interest on or before such payment date in such amounts
as will provide the necessary money.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged.
SECTION 802. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 801. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of the
principal or Redemption Price of and any unpaid and accrued interest on the
Securities.
SECTION 803. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly notify the
Company of, and pay to the Company upon the request of the Company, any excess
money or securities held by them at any time. The Trustee and the Paying Agent
shall pay to the Company upon the written request of the Company any money held
by them for the payment of the principal or Redemption Price of and any unpaid
and accrued interest that remains unclaimed for two years; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may, at the expense and request of the Company, cause to be published
once in an Authorized Newspaper or cause to be mailed to each Holder, notice
stating that such money remains and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Security Holders entitled to the money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another person and all liability of the Trustee and the
Paying Agent shall cease.
SECTION 804. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Sections 801 and 802 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Sections 801 and 802 until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with Sections 801 and 802; provided, however, that if the Company has
made any payment of amounts due with respect to
50
any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE NINE
AMENDMENTS
SECTION 901. WITHOUT CONSENT OF HOLDERS.
The Company, with the consent of the Trustee, may amend or
supplement this Indenture or the Securities without notice to or the consent of
any Security Holder:
(i) to evidence a successor to the
Company and the assumption by that successor of the
obligations under the Securities and the Indenture;
(ii) to add to the covenants of the
Company described in this Indenture for the benefit
of Security Holders or to surrender any right or
power conferred upon the Company;
(iii) to secure the obligations of the
Company in respect of the Securities;
(iv) to make any changes or
modifications to this Indenture necessary in
connection with the registration of the Securities
under the Securities Act and the qualification of the
Indenture under the TIA; or
(v) to cure any ambiguity or
inconsistency in this Indenture.
Notwithstanding the foregoing, no supplemental indenture
pursuant to clause (ii), (iii), (iv) or (v) of this Section 901 may be entered
into without the consent of the Holders of a majority in principal amount of the
Securities then outstanding if such supplemental indenture would materially and
adversely affect the interests of the Holders of the Securities. In addition,
the Company, with the consent of the Trustee, may amend or supplement this
Indenture or the Securities without the consent of any Security Holder, where,
as evidenced in a Board Resolution, such amendment or supplement (i) is
necessary to conform the Indenture and the Securities to the descriptions
thereof contained in the Offering Memorandum (ii) is not materially adverse to
the Security Holders, and (iii) does not result in any withholding taxes
becoming payable in respect of payments on the Securities.
SECTION 902. WITH CONSENT OF HOLDERS.
The Company, with the consent of the Trustee, may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding. Subject to Section 607, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may (a) waive compliance by
the Company with any restrictive provision of this Indenture or the
51
Securities, (b) waive any past Default under this Indenture and its
consequences, except a Default in the payment of the principal amount, accrued
and unpaid interest, if any, (including Additional Amounts and Additional
Interest Amount), Redemption Price, Purchase Price or Designated Event Purchase
Price or obligation to deliver Common Shares upon conversion with respect to any
Security or in respect of any provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Security affected
then outstanding. However, without the consent of each Security Holder affected,
an amendment, supplement or waiver, including a waiver pursuant to Section 604,
may not:
(i) reduce the rate or change the time
of payment of interest (including Additional Amounts
and Additional Interest Amount) on any Security;
(ii) make any Security payable in money
or securities other than as stated in such Security;
(iii) change the Stated Maturity of any
Security;
(iv) reduce the principal amount,
Redemption Price, Designated Event Purchase Price, or
Purchase Price of any Security;
(v) make any change that adversely
affects the right to require the Company to purchase
the Securities (including pursuant to a Designated
Event Purchase Offer);
(vi) waive a default in the payment of
any amount due with respect to any Security;
(vii) impair the right to convert, or
receive payment with respect to, a Security, or the
right to institute suit for the enforcement of any
payment with respect to, or conversion of, the
Securities; or
(viii) change the provisions of this
Indenture that relate to modifying or amending the
Indenture.
Promptly after an amendment under Section 901 or this Section
902 becomes effective, the Company shall mail to Security Holders a notice
briefly describing the amendment. Any failure of the Company to mail such notice
shall not in any way impair or affect the validity of such amendment, supplement
or waiver.
It shall not be necessary for the consent of the Holders under
this Section 902 to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 903. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
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SECTION 904. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to its Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Security Holder.
After an amendment, supplement or waiver becomes effective
with respect to the Securities, it shall bind every Security Holder unless it
makes a change described in Section 902. In that case, the amendment, supplement
or waiver shall bind each Holder of a Security who has consented to it and,
provided that notice of such amendment, supplement or waiver is reflected on a
Security that evidences the same debt as the consenting Holder's Security, every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 905. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security as
directed and prepared by the Company about the changed terms and return it to
the Holder. Alternatively, if the Company so determines, the Company in exchange
for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms.
SECTION 906. TRUSTEE PROTECTED.
The Trustee need not sign any amendment, supplement or waiver
authorized pursuant to this Article Nine that adversely affects the Trustee's
rights, duties, liabilities or immunities. The Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel and an Officers'
Certificate that any supplemental indenture, amendment or waiver is permitted or
authorized pursuant to the Indenture.
ARTICLE TEN
CONVERSION
SECTION 1001. RIGHT TO CONVERT.
(a) Subject to and upon compliance with the
provisions of this Indenture, prior to the Close of Business on
December 1, 2023, the Holder of any Security shall have the right, at
such Holder's option, to convert the principal amount of the Security,
or any portion of such principal amount that is a positive integral
multiple of $1,000, into (subject to the Company Cash Conversion Option
pursuant to Section 1002) fully paid
53
and non-assessable Common Shares (as such shares shall then be
constituted) at the Conversion Rate in effect at such time, solely upon
the occurrence of one or more events described in Sections 1001(b),
1001(c), 1001(d), 1001(e) or 1001(f) below, by surrender of the
Security to be so converted in whole or in part, together with any
required funds, in the manner provided in Section 1002.
Whenever the Securities shall become convertible pursuant to
this Section 1001, the Company or, at the Company's request upon reasonable
prior notice, the Trustee in the name and at the expense of the Company, shall
notify the Holders of the event triggering such convertibility and the Company
shall also publicly announce such information.
A Security in respect of which a Holder is electing to accept
the offer of the Company to repurchase such Holder's Securities upon a
Designated Event pursuant to Section 309, or requiring the Company to purchase
such Holder's Securities at the option of the Holder on the Purchase Date
pursuant to Section 310, may be converted into Common Shares only if such Holder
withdraws its election in accordance with Section 309 or Section 310,
respectively. A Holder is not entitled to any rights of a holder of Common
Shares until such Holder has converted its Securities into Common Shares, and
only to the extent such Securities are deemed to have been converted into Common
Shares under this Article Ten.
(b) Commencing after March 31, 2004, Securities may
be surrendered for conversion into Common Shares during any fiscal
quarter of the Company (and only during such fiscal quarter), if, as of
last Trading Day of the immediately preceding fiscal quarter, the
Closing Sale Price for at least twenty (20) Trading Days in the thirty
(30) consecutive Trading Day period ending on the last Trading Day of
such immediately preceding fiscal quarter exceeds 120% of the
Conversion Price in effect on such 30th Trading Day.
The Company shall determine for each Trading Day during the 30
consecutive Trading Day period specified in this Section 1001(b) whether the
Closing Sale Price exceeds 120% of such Conversion Price and whether the
Securities shall be convertible as a result of the occurrence of the event
specified in this Section 1001(b) and, if the Securities shall be so
convertible, the Company shall promptly deliver to the Trustee (or the
Conversion Agent if the Trustee is not the Conversion Agent) written notice
thereof.
(c) The Securities may be surrendered for conversion
into Common Shares during the five Business Day period (and only during
any such period) following any five consecutive Trading Day period in
which the daily average of the Trading Prices for the Securities for
such five Trading Day Period was less than 98% of the average
Conversion Value for the Securities during such period; provided
however, that after December 1, 2018, if on the date of any Conversion
pursuant to this Section 1001(c), the Closing Sale Price of the Common
Shares is greater than the Conversion Price per share but less than
120% of the Conversion Price per share, then Holders shall receive, in
lieu of Common Shares based on the Conversion Rate, Common Shares,
subject to the Company Cash Conversion Option, having a value
(determined in accordance with the last paragraph of Section 1002)
equal to the principal amount of such Securities, plus accrued and
unpaid interest, if any.
54
(d) If any Securities have been called for redemption
pursuant to Section 301 or Section 308, such Securities (and only such
Securities) may be surrendered for conversion, at any time on or after
the date the Redemption Notice has been given under Section 301 or
Section 308 until the Close of Business on the Business Day immediately
preceding the Redemption Date, after which time the right to convert in
reliance on this Section 1001(d) shall expire unless the Company
defaults in the payment of the Redemption Price.
(e) If (1) the Company distributes to all holders of
Common Shares rights or warrants entitling them to purchase Common
Shares, for a period expiring within forty-five (45) days of the record
date for such issuance, at a price per share that is less than the
average of the Closing Sale Prices for the ten (10) consecutive Trading
Days immediately preceding, but not including, the record date for such
distribution, or (2) the Company elects to distribute to all holders of
Common Shares, cash or other assets, debt securities or certain rights
to purchase its securities, which distribution has a per share value
exceeding 5% of the Closing Sale Price on the Trading Day preceding the
declaration date for the distribution, then, in either case, the
Securities may be converted at any time on and after the date that the
Company gives notice to the Holders of such distribution, which shall
be not less than twenty (20) days prior to the Ex-Dividend Time for
such distribution, until the earlier of the Close of Business on the
Business Day immediately preceding the Ex-Dividend Time or the date the
Company publicly announces that such distribution will not take place;
provided that Securities may not be converted pursuant to this Section
1001(e) nor will any adjustment to the Conversion Rate be made pursuant
to the transactions described in this Section 1001(e) if the Holder,
without conversion of the Security, would participate, on the same
basis as a holder of Common Shares, in the distribution as if such
Holder had converted its Securities into Common Shares prior to the
record date for such distribution.
"EX-DIVIDEND TIME" means, with respect to any distribution on
Common Shares, the first date on which the Common Shares trade regular way on
the principal securities market on which the Common Shares are then traded
without the right to receive such distribution.
(f) If the Company is a party to a Reorganization or
Sale, in each case pursuant to which the Common Shares are converted
into or become the right to receive cash, securities or other property,
then the Securities may be surrendered for conversion at any time from
and after the date fifteen (15) days prior to the anticipated effective
date of the transaction until and including the date that is fifteen
(15) days after the actual date of such transaction (or, if such
Reorganization or Sale also constitutes a Designated Event, until the
corresponding Designated Event Purchase Date). The Board of Directors
shall determine the anticipated effective date of the transaction, and
such determination shall be conclusive and binding on the Holders and
shall be publicly announced by the Company not later than two (2)
Business Days prior to such 15th day.
55
SECTION 1002. EXERCISE OF CONVERSION PRIVILEGE;
ISSUANCE OF COMMON SHARES ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR
DIVIDENDS.
In order to exercise any conversion privilege with respect to
any Security in certificated form, the Company must receive at the office or
agency of the Company maintained for that purpose or, at the option of a holder
of such Security, the Corporate Trust Office of the Trustee, such Security with
the original or facsimile of the form entitled "CONVERSION NOTICE" on the
reverse thereof, duly completed and manually signed, together with such
Securities duly endorsed for transfer, accompanied by the funds, if any,
required by this Section 1002 (the date on which the Company receives the
foregoing is referred to as the "CONVERSION DATE"). Such notice shall also state
the name or names (with address or addresses) in which the certificate or
certificates for Common Shares which shall be issuable on such conversion shall
be issued, and shall be accompanied by transfer or similar taxes, if required
pursuant to Section 1007.
In order to exercise the conversion privilege with respect to
any interest in a Global Security, the beneficial holder must complete, or cause
to be completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Security, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
Conversion Agent, and pay the funds, if any, required by this Section 1002 and
any transfer or similar taxes if required pursuant to Section 1007.
Subject to compliance with any restrictions on transfer if
shares issuable on conversion are to be issued in a name other than that of the
Holder (as if such transfer were a transfer of the Security or Securities (or
portion thereof) so converted), the Company shall, subject to the Company Cash
Conversion Option, issue and shall deliver to such Holder, at the office or
agency maintained by the Company for such purpose pursuant to Section 402, a
certificate or certificates for the number of Common Shares issuable upon the
conversion of such Security or portion thereof as determined by the Company in
accordance with the provisions of this Article Ten and a check or cash in
respect of any fractional interest in respect of a Common Share arising upon
such conversion, calculated by the Company as provided in Section 1003. In case
any Security of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Sections 215 and 216 hereof, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
the Security so surrendered, without charge to such Holder, a new Security or
Securities in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Security.
Each conversion shall be deemed to have been effected as to
any such Security (or portion thereof) on the date on which the requirements set
forth in this Section 1002 have been satisfied as to such Security (or portion
thereof), and the Person in whose name any certificate or certificates for
Common Shares shall be issuable upon such conversion shall be deemed to have
become on said date the holder of record of the shares represented thereby;
provided that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person in whose name the
certificates are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are open, but
56
such conversion shall be at the Conversion Rate in effect on the date upon which
such Security shall be surrendered.
If any Security (or portion thereof) is converted into Common
Shares during the period after the Close of Business on a regular record date
for the payment of interest to, but excluding, the Close of Business on the next
succeeding interest payment date, the Company shall pay interest on such
interest payment date in respect of any such Security (or portion thereof) to
the Holder of such Securities registered as such on such regular record date.
Any Security or portion thereof surrendered for conversion during such period
shall be accompanied by payment by the Holder to the Company, in immediately
available funds or other funds acceptable to the Company, of an amount equal to
the interest otherwise payable on such interest payment date on the principal
amount being converted; provided that no such payment need be made (1) if the
Company has specified a Redemption Date that is after a regular record date and
on or prior to the next interest payment date, (2) if the Company has specified
a Designated Event Purchase Date following a Designated Event that is after a
regular record date and on or prior to the next interest payment date or (3) to
the extent of any overdue interest, if any overdue interest exists at the time
of conversion with respect to such Security. Except as provided above in this
Section 1002, no payment or other adjustment shall be made for interest accrued
and unpaid on any Security converted or for dividends on any Common Shares
issued upon the conversion of such Security as provided in this Article Ten.
Upon the conversion of an interest in a Global Security, the
Trustee (or other Conversion Agent appointed by the Company), or the Custodian
at the direction of the Trustee (or other Conversion Agent appointed by the
Company), shall make a notation on such Global Security as to the reduction in
the principal amount represented thereby. The Company shall notify the Trustee
in writing of any conversions of Securities effected through any Conversion
Agent other than the Trustee.
Upon the conversion of a Security, that portion of the accrued
but unpaid interest with respect to the converted Security shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Shares (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the
Security being converted pursuant to the provisions hereof; and the Fair Market
Value of such Common Shares (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for and in satisfaction of the Company's obligation to pay the
principal amount of the converted Security, the accrued but unpaid interest, and
second the balance, if any, of such Fair Market Value of such Common Shares (and
any such cash payment) shall be treated as issued in exchange for and in
satisfaction of the right to convert the Security being converted pursuant to
the provisions hereof.
On or after January 20, 2009, the Company has the option (the
"COMPANY CASH CONVERSION OPTION") to deliver cash in lieu of some or all of the
Common Shares issuable upon conversion of the Securities. The Company will give
notice of its election of the Company Cash Conversion Option within two Business
Days of its receipt of the Holder's Conversion Notice, unless the Company has
already informed Holders of its election in connection with a Redemption Notice.
Such notice shall state (1) the Company's intention to deliver cash in lieu of
some or all other Common Shares otherwise deliverable, (2) if a
57
combination thereof, the number of Common Shares per $1,000 principal amount of
Security for which cash will be delivered in lieu of delivery of such Common
Shares and (3) the method for calculating the amount of cash to be delivered per
Common Share.
If the Company elects the Company Cash Conversion Option, the
amount of cash to be delivered on conversion by a Holder in lieu of each such
Common Share will be equal to the average of the Closing Sale Prices for the ten
consecutive Trading Days commencing one Trading Day following (i) the date of
the Company's notice of election of the Company Cash Conversion Option if the
Company has not given a Redemption Notice, or (ii) the Conversion Date, in the
case of a conversion following the giving by the Company of a Redemption Notice
specifying its intention to deliver cash upon conversion. If the Company elects
the Company Cash Conversion Option, the Company shall make the payment,
including the delivery of any Common Shares issuable upon such conversion, to
Holders surrendering Securities no later than the seventeenth Business Day
following the Conversion Date. If the Company does not elect the Company Cash
Conversion Option, the Common Shares issuable upon such conversion, together
with any cash payment for fractional shares, will be delivered through the
Conversion Agent no later than the fifth Business Day following the Conversion
Date. If an Event of Default (other than a default in payment upon conversion of
the Securities), has occurred and is continuing, the Company may not deliver
cash upon conversion of any Securities (other than cash in lieu of fractional
shares).
SECTION 1003. CASH PAYMENTS IN LIEU OF FRACTIONAL
SHARES.
No fractional Common Shares or scrip certificates representing
fractional shares shall be issued upon conversion of Securities. If more than
one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares that shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If
any fractional Common Shares would be issuable upon the conversion of any
Security or Securities, the Company shall make an adjustment and payment
therefor in cash based on the Closing Sale Price of the Common Shares on the
Trading Day immediately prior to the Conversion Date.
SECTION 1004. CONVERSION RATE.
Each $1,000 principal amount of the Securities shall be
convertible into the number of Common Shares specified in the form of Security
attached as Exhibit A hereto, subject to adjustment as provided in this Article
Ten (herein called the "CONVERSION RATE").
SECTION 1005. ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be adjusted from time to time by the
Company as follows:
(a) In case the Company shall hereafter pay a
dividend or make a distribution to all holders of outstanding Common
Shares in Common Shares, the Conversion Rate shall be increased so that
the same shall equal the rate determined by
58
multiplying the Conversion Rate in effect at the opening of business on
the date following the Record Date by a fraction:
(i) the numerator of which shall be the
sum of the number of Common Shares outstanding at the
Close of Business on the Record Date plus the total
number of Common Shares constituting such dividend or
other distribution; and
(ii) the denominator of which shall be
the number of Common Shares outstanding at the Close
of Business on the Record Date,
such increase to become effective immediately after the opening of
business on the day following the Record Date. For the purpose of this
paragraph (a), the number of Common Shares at any time outstanding
shall not include shares held in the treasury of the Company. The
Company will not pay any dividend or make any distribution on Common
Shares held in the treasury of the Company. If any dividend or
distribution of the type described in this Section 1005(a) is declared
but not so paid or made, the Conversion Rate shall again be adjusted to
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(b) In case the Company issues to all holders of
Common Shares rights or warrants entitling them to purchase Common
Shares, for a period expiring within forty-five (45) days of the record
date for such issuance, at a price per share that is less than the
average of the Closing Sale Prices for the ten (10) consecutive Trading
Days immediately preceding, but not including, the date such issuance
is first publicly announced by the Company, the Conversion Rate shall
be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date
fixed for determination of shareholders entitled to receive such rights
or warrants by a fraction:
(i) the numerator of which shall be the
number of Common Shares outstanding at the Close of
Business on the Record Date plus the total number of
additional Common Shares offered for subscription or
purchase, and
(ii) the denominator of which shall be
the sum of the number of Common Shares outstanding at
the Close of Business on the Record Date plus the
number of shares that the aggregate offering price of
the total number of shares so offered would purchase
at a price equal to the average of the Closing Sale
Prices of the Common Shares for the ten (10) Trading
Days immediately preceding the date such distribution
is first publicly announced by the Company.
Such adjustment shall be successively made whenever
any such rights or warrants are issued, and shall become effective
immediately after the opening of business on the day following the
Record Date. To the extent that Common Shares are not delivered after
the expiration of such rights or warrants, the Conversion Rate shall be
59
readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of Common Shares actually
delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then
be in effect if such Record Date had not been fixed. In determining
whether any rights or warrants entitle the shareholders to subscribe
for or purchase Common Shares at a price less than the average of the
Closing Sale Prices of the Common Share for the ten (10) Trading Days
immediately preceding the date such distribution is first publicly
announced by the Company, and in determining the aggregate offering
price of such Common Shares, there shall be taken into account any
consideration received by the Company for such rights or warrants and
any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of
Directors.
(c) In case outstanding Common Shares shall be
subdivided into a greater number of Common Shares, the Conversion Rate
in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately
increased, and conversely, in case outstanding Common Shares shall be
combined into a smaller number of Common Shares, the Conversion Rate in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of Common Shares, shares of any
class of capital stock of the Company (other than Common Shares) or
evidences of indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 1005(b), and
excluding any dividend or distribution (x) paid in cash or (y) referred
to in Section 1006 (any of the foregoing hereinafter in this Section
1005(d) called the "DISTRIBUTED SECURITIES")), then, in each such case
the Conversion Rate shall be increased so that the same shall be equal
to the rate determined by multiplying the Conversion Rate in effect on
the Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the
Current Market Price on such Record Date; and
(ii) the denominator of which shall be
the Current Market Price on such Record Date less the
Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive,
and described in a resolution of the Board of
Directors) on the Record Date of the portion of the
Distributed Securities so distributed applicable to
one Common Share,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided, that if the then Fair Market
Value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one Common Share is equal
60
to or greater than the Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder shall
be entitled to receive upon conversion the amount of Distributed Securities such
Holder would have received had such Holder converted each Security on the Record
Date; provided, further, that if such Distributed Securities are so distributed,
prior to the date that is five years plus one day after the later of the Issue
Date and the last date on which Securities were issued pursuant to the Initial
Purchasers' Option, such Holder shall only be entitled to receive, in addition
to Common Shares to which such Holder is entitled to receive upon conversion,
Prescribed Securities of a type specified by the Board of Directors and the
Conversion Rate shall, if necessary, be adjusted so that the value of such
Prescribed Securities is equivalent in value as of the date of such distribution
(based on the average of the closing sale prices for such Prescribed Securities,
if available) for the ten (10) Trading Day period beginning on the fifth Trading
Day after such distribution, and if such closing sale prices are not available,
as determined by the Board of Directors, to the consideration received by
holders of Common shares pursuant to such distribution of Distributed
Securities, provided that the Company may elect at the Company's sole option, to
deliver such Distributed Securities instead of such Prescribed Securities. If
such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. If the Board of Directors
determines the Fair Market Value of any distribution for purposes of this
Section 1005(d) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price on the applicable Record Date.
Notwithstanding the foregoing, if the Distributed Securities
distributed by the Company to all holders of Common Shares consist of capital
stock of, or similar equity interests in, a Subsidiary or other business unit of
the Company, then the Conversion Rate shall be adjusted so that the same shall
be equal to the rate determined by multiplying the Conversion Rate in effect on
the Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the
sum of (A) the average of the Closing Sale Prices of
the Common Shares for the ten (10) Trading Days
commencing on and including the fifth Trading Day
after the date on which "ex-dividend trading" of the
Common Shares commences with respect to such
Distributed Securities (the "EX-DIVIDEND DATE") plus
(B) the Fair Market Value of the Distributed
Securities distributed in respect of each Common
Share for which this Section 1005(d) applies which
shall equal the number of Distributed Securities
distributed in respect of each Common Share
multiplied by the average of the Distributed
Securities Closing Sale Price for the ten (10)
Trading Days commencing on and including the fifth
Trading Day after the Ex-Dividend Date; and
(ii) the denominator of which shall be
the average of the Closing Sale Prices of the Common
Shares for the ten (10) Trading Days commencing on
and including the fifth Trading Day after the
Ex-Dividend Date,
61
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date.
"DISTRIBUTED SECURITIES CLOSING SALE PRICE" on any date shall
mean the closing sale price per Distributed Security (or, if no closing sale
price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on such
date as reported in composite transactions for the principal United States
securities exchange on which the Distributed Securities are traded or, if the
Distributed Securities are not listed on a United States national or regional
securities exchange, as reported by the Nasdaq System or, if no such price is
reported, as reported by the principal non-United States market on which the
Distributed Securities are traded, such price to be converted into U.S. dollars
based on the Federal Reserve Bank of New York noon buying rate as reported for
conversion into U.S. dollars on such date. In the absence of such quotation, the
Board of Directors will determine in good faith the Distributed Securities
Closing Sale Price.
Rights or warrants distributed by the Company to all holders
of Common Shares entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("TRIGGER EVENT"): (i) are deemed to be transferred with such
Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of Common Shares, shall be deemed not to have been distributed
for purposes of this Section 1005 (and no adjustment to the Conversion Rate
under this Section 1005 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 1005(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 1005 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Shares with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Shares as
of the date of such redemption or repurchase, and (2) in the case of such rights
or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
62
No adjustment of the Conversion Rate shall be made pursuant to
this Section 1005(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed to the Holders of Securities.
For purposes of this Section 1005(d) and Section 1005(a) and
(b), any dividend or distribution to which this Section 1005(d) is applicable
that also includes Common Shares, or rights or warrants to subscribe for or
purchase Common Shares (or both), shall be deemed instead to be (1) a dividend
or distribution of the evidences of indebtedness, assets or shares of capital
stock other than such Common Shares or rights or warrants (and any Conversion
Rate adjustment required by this Section 1005(d) with respect to such dividend
or distribution shall then be made) immediately followed by (2) a dividend or
distribution of such Common Shares or such rights or warrants (and any further
Conversion Rate adjustment required by Sections 1005(a) and 1005(b) with respect
to such dividend or distribution shall then be made), except (A) the Record Date
of such dividend or distribution shall be substituted as "the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution," "the date fixed for the determination of shareholders entitled to
receive such rights or warrants" and "the date fixed for such determination"
within the meaning of Section 1005(a) and 1005(b) and (B) any Common Shares
included in such dividend or distribution shall not be deemed "outstanding at
the Close of Business on the date fixed for such determination" within the
meaning of Section 1005(a). If the Board of Directors determines the Fair Market
Value of any distribution for purposes of this Section 1005(d) by reference to
the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the
Current Market Price on the applicable Record Date.
(e) If the Company distributes cash payable to all
holders of Common Shares and such cash distribution, together with any
other cash distributions paid during the preceding twelve months,
exceeds $0.06 per Common Share (the "DIVIDEND THRESHOLD AMOUNT") (the
Dividend Threshold Amount is subject to adjustment whenever an
adjustment is made to the Conversion Rate pursuant to clause (a) or (c)
above, which adjustment shall be the inverse of the adjustment made to
the Conversion Rate pursuant to such clause), the Conversion Rate shall
be increased so that it equals the rate determined by multiplying the
Conversion Rate in effect on the Record Date with respect to the cash
distribution by a fraction,
(i) the numerator of which shall be the
Current Market Price on such Record Date; and
(ii) the denominator of which shall be
the Current Market Price on such Record Date less the
amount of cash so distributed in excess of the
Dividend Threshold Amount applicable to one Common
Share,
such adjustment to be effective immediately prior to the opening of business on
the day following the Record Date; provided, that if the portion of the cash so
distributed in excess of the Dividend Threshold Amount applicable to one Common
Share is equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, a Holder shall be entitled to receive on
conversion the cash that the Holder would have received if the Holder had
converted its Securities immediately prior to the Record Date; provided however,
that if such
63
distribution occurs on or prior to the date that is five years plus one day
after the later of the Issue Date and the last date on which Securities were
issued pursuant to the Initial Purchasers' Option, a Holder shall only be
entitled to receive, in addition to Common Shares to which such holder is
entitled to receive upon conversion, Prescribed Securities of a type specified
by the Board of Directors and the Conversion Rate shall, if necessary, be
adjusted so that the value of such Prescribed Securities is equivalent in value
as of the date of such distribution (based on the average of the closing sale
prices for such Prescribed Securities, if available) for the ten (10) Trading
Day period beginning on the fifth Trading Day after such distribution, and if
such Closing Sale Prices are not available, as determined by the Board of
Directors, to the cash so distributed, provided that the Company may elect, at
the Company's sole option, to deliver such cash instead of such Prescribed
Securities. If such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared. If the
Board of Directors determines the Fair Market Value of any Prescribed Securities
for purposes of this Section 1005(e) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price on
the applicable Record Date.
(f) In case an issuer bid, tender or exchange offer
made by the Company or any Subsidiary for all or any portion of the
Common Shares shall expire and such issuer bid, tender or exchange
offer (as amended upon the expiration thereof) shall require the
payment to shareholders of consideration per Common Share having a Fair
Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) that as of the last time (the "EXPIRATION TIME")
tenders or exchanges may be made pursuant to such issuer bid, tender,
or exchange offer (as it may be amended) exceeds the Closing Sale Price
on the Trading Day next succeeding the Expiration Time, the Conversion
Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately
prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the
sum of (x) the Fair Market Value (determined as
aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any
maximum specified in the terms of the issuer bid,
tender or exchange offer) of all Common Shares
validly tendered or exchanged and not withdrawn as of
the Expiration Time (the shares deemed so accepted up
to any such maximum, being referred to as the
"PURCHASED SHARES") and (y) the product of the number
of Common Shares outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale
Price on the Trading Day next succeeding the
Expiration Time, and
(ii) the denominator of which shall be
the number of Common Shares outstanding (including
any tendered or exchanged shares) at the Expiration
Time multiplied by the Closing Sale Price on the
Trading Day next succeeding the Expiration Time
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such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such issuer bid, tender or exchange offer, but
the Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, or if the purchase or exchange of
Purchased Shares is otherwise not consummated, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
issuer bid, tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a
Person other than the Company or any Subsidiary for an amount that
increases the offeror's ownership of Common Shares to more than
twenty-five percent (25%) of the Common Shares outstanding and shall
involve the payment by such Person of consideration per Common Share
having a Fair Market Value (as determined by the Board of Directors,
whose determination shall be conclusive, and described in a resolution
of the Board of Directors) that as of the last time (the "OFFER
EXPIRATION TIME") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) exceeds the
Closing Sale Price on the Trading Day next succeeding the Offer
Expiration Time, and in which, as of the Offer Expiration Time the
Board of Directors is not recommending rejection of the offer, the
Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect
immediately prior to the Offer Expiration Time by a fraction,
(i) the numerator of which shall be the
sum of (x) the Fair Market Value (determined as
aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any
maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Offer
Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "ACCEPTED
PURCHASED SHARES") and (y) the product of the number
of Common Shares outstanding (less any Accepted
Purchased Shares) at the Offer Expiration Time and
the Closing Sale Price on the Trading Day next
succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be
the number of Common Shares outstanding (including
any tendered or exchanged shares) at the Offer
Expiration Time multiplied by the Closing Sale Price
on the Trading Day next succeeding the Offer
Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. If such Person is obligated to
purchase shares pursuant to any such tender or exchange offer, but such Person
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, or if the purchase or exchange of Accepted
Purchased Shares is otherwise not consummated, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 1005(g) shall not be made if, as of the
Offer Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Company to engage
65
in any consolidation or merger with or into any other Person or Persons, or Sale
to any other Person or Persons.
(h) For purposes of this Section 1005 and Section
1002, the following terms shall have the meaning indicated:
(i) "CURRENT MARKET PRICE" shall mean
the average of the daily Closing Sale Prices for the
ten (10) consecutive Trading Days ending on the
earlier of such date of determination and the day
before the "ex" date with respect to the issuance,
distribution, subdivision or combination requiring
such computation immediately prior to the date in
question. For purpose of this paragraph, the term
"ex" date, (1) when used with respect to any issuance
or distribution, means the first date on which the
Common Shares trade, regular way, on the relevant
exchange or in the relevant market from which the
Closing Sale Price was obtained without the right to
receive such issuance or distribution, and (2) when
used with respect to any subdivision or combination
of Common Shares, means the first date on which the
Common Shares trade, regular way, on such exchange or
in such market after the time at which such
subdivision or combination becomes effective.
If another issuance, distribution, subdivision or
combination to which Section 1005 applies occurs
during the period applicable for calculating "Current
Market Price" pursuant to the definition in the
preceding paragraph, "Current Market Price" shall be
calculated for such period in a manner determined by
the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on
the Closing Sale Price during such period.
(ii) "FAIR MARKET VALUE" shall mean the
amount which a willing buyer would pay a willing
seller in an arm's-length transaction.
(iii) "RECORD DATE" shall mean, with
respect to any dividend, distribution or other
transaction or event in which the holders of Common
Shares have the right to receive any cash, securities
or other property or in which the Common Shares (or
other applicable security) are exchanged for or
converted into any combination of cash, securities or
other property, the date fixed for determination of
shareholders entitled to receive such cash,
securities or other property (whether such date is
fixed by the Board of Directors or by statute,
contract or otherwise).
(i) The Company may, subject to applicable regulatory
approval, make such increases in the Conversion Rate, in addition to
those required by Section 1005(a), (b), (c), (d), (e), (f) or (g), as
the Board of Directors considers to be advisable to avoid or diminish
any income tax to holders of Common Shares or rights to purchase Common
Shares resulting from any dividend or distribution of stock (or rights
to acquire stock) or from any event treated as such for income tax
purposes.
66
To the extent permitted by applicable law, and, subject to
applicable regulatory approval, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least
twenty (20) Business Days, the increase is irrevocable during the period and the
Board of Directors shall have made a determination that such increase would be
in the best interests of the Company, which determination shall be conclusive.
Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall mail to Holders of the Securities a notice of the increase at
least fifteen (15) days prior to the date the increased Conversion Rate takes
effect, and such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
(j) All calculations under this Article Ten shall be
made by the Company and shall be made to the nearest cent or to the
nearest one-ten thousandth (1/10,000) of a share, as the case may be.
No adjustment need be made for rights to purchase Common Shares
pursuant to a Company plan for reinvestment of dividends or interest or
for any issuance of Common Shares or convertible or exchangeable
securities or rights to purchase Common Shares or convertible or
exchangeable securities. To the extent the Securities become
convertible into cash, assets, property or securities (other than
capital stock of the Company), no adjustment need be made thereafter as
to the cash, assets, property or such securities. Interest will not
accrue on any cash into which the Securities are convertible.
(k) Whenever the Conversion Rate is adjusted as
herein provided, the Company shall promptly file with the Trustee and
any Conversion Agent other than the Trustee an Officers' Certificate
setting forth the Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Unless
and until a Responsible Officer of the Trustee shall have received such
Officers' Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that
the last Conversion Rate of which it has knowledge is still in effect.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Rate setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Rate to the holder of each Security at his last address
appearing on the register of the Registrar, within twenty (20) days
after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.
(l) In any case in which this Section 1005 provides
that an adjustment shall become effective immediately after (1) a
Record Date for an event, (2) the date fixed for the determination of
shareholders entitled to receive a dividend or distribution pursuant to
Section 1005(a), (3) a date fixed for the determination of shareholders
entitled to receive rights or warrants pursuant to Section 1005(b), (4)
the Expiration Time for any issuer bid, tender or exchange offer
pursuant to Section 1005(f) or (5) the Offer Expiration Time for any
tender or exchange offer pursuant to Section 1005(g), (each a
"DETERMINATION DATE"), the Company may elect to defer until the
occurrence of the applicable Adjustment Event (as hereinafter defined)
(x) issuing to the Holder of any Security converted after such
Determination Date and before the occurrence of such Adjustment Event,
the additional Common Shares or other securities issuable upon such
67
conversion by reason of the adjustment required by such Adjustment
Event over and above the Common Shares issuable upon such conversion
before giving effect to such adjustment and (y) paying to such Holder
any amount in cash in lieu of any fractional share pursuant to Section
1003. For purposes of this Section 1005(1), the term "ADJUSTMENT EVENT"
shall mean:
(i) in any case referred to in clause
(1) hereof, the occurrence of such event; provided,
that in the case of an adjustment made with respect
to a distribution of capital stock of, or similar
equity interest in, a Subsidiary or other business
unit of the Company, the Adjustment Event shall be
deemed to have occurred on the Business Day next
following the ten (10) Trading Day period referred to
in the second paragraph of Section 1005(d),
(ii) in any case referred to in clause
(2) hereof, the date any such dividend or
distribution is paid or made,
(iii) in any case referred to in clause
(3) hereof, the date of expiration of such rights or
warrants,
(iv) in any case referred to in clause
(4) hereof, the date a sale or exchange of Common
Shares pursuant to such issuer bid, tender or
exchange offer is consummated and becomes
irrevocable, and
(v) in the case referred to in clause
(5) hereof, the date a sale or exchange of Common
Shares pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(m) For purposes of this Section 1005, the number of
Common Shares at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of Common
Shares.
(n) No adjustment need by made for a transaction
referred to in this Article Ten if Security Holders are to participate
in the transaction without conversion on a basis and with notice that
the Board of Directors determines to be fair and appropriate in light
of the basis on which holders of Common Shares participate in the
transaction and notice such holders of Common Shares receive.
(o) No adjustment in the Conversion Rate shall be
required until cumulative adjustments amount to 1% or more of the
Conversion Rate as last adjusted; provided, however, that any
adjustments which by reason of this Section 1005(o) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment.
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SECTION 1006. EFFECT OF RECLASSIFICATION,
REORGANIZATION OR SALE AND FURTHER ADJUSTMENT TO THE CONVERSION RATE.
(a) If any of the following events occur, namely (i)
any Reclassification (other than a subdivision or combination to which
Section 1005(c) applies), (ii) any Reorganization, or (iii) any Sale,
as a result of which holders of Common Shares shall be entitled to
receive stock, other securities, other property, assets or cash for
their Common Shares, then, subject to Section 1006(b), the Company or
the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the
TIA as in force at the date of execution of such supplemental
indenture) providing that each Security shall be convertible into the
kind and amount of shares of stock, other securities, other property,
assets or cash receivable upon such Reclassification, Reorganization or
Sale by a holder of a number of Common Shares issuable upon conversion
of such Securities (assuming, for such purposes, a sufficient number of
authorized Common Shares are available to convert all such Securities)
immediately prior to such Reclassification, Reorganization or Sale
assuming such holder of Common Shares did not exercise his rights of
election, if any, as to the kind or amount of stock, other securities,
other property, assets or cash receivable upon such Reclassification,
Reorganization or Sale (provided that, if the kind or amount of stock,
other securities, other property, assets or cash receivable upon such
Reclassification, Reorganization or Sale is not the same for each
Common Share in respect of which such rights of election shall not have
been exercised (a "NON-ELECTING SHARE"), then for the purposes of this
Section 1006 the kind and amount of stock, other securities, other
property, assets or cash receivable upon such Reclassification,
Reorganization or Sale for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article Ten.
The Company shall cause notice of the execution of
such supplemental indenture to be mailed to each Holder, at its address
appearing on the register of the Registrar, within twenty (20) days
after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly
apply to successive Reclassifications, Reorganizations or Sales.
If this Section 1006 applies to any event or
occurrence, Section 1005 shall not apply.
(b) If, however, prior to the date that is five years
plus one day after the later of the Issue Date and the last date on
which Securities were issued pursuant to the Initial Purchasers'
Option, Holders of Securities would otherwise be entitled to receive,
upon conversion of the Securities, any property (including cash) or
securities of a company that would not constitute Prescribed Securities
(which is referred to herein as "INELIGIBLE CONSIDERATION"), such
holders shall not be entitled to receive such Ineligible Consideration
but the Company or the successor or acquiror, as the case may
69
be, shall have the right (at the sole option of the Company or the
successor or acquiror, as the case may be) to deliver either such
Ineligible Consideration or Prescribed Securities with a market value
equal to the market value of such Ineligible Consideration (as
determined in good faith by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution).
The Company will give notice to Holders of the
Securities at least 30 days prior to the effective date of such
transaction in writing and by release to a business newswire stating
the consideration into which the Securities will be convertible after
the effective date of such transaction. After such notice, the Company
or the successor or acquiror, as the case may be, may not change the
consideration to be delivered upon conversion of the Securities except
in accordance with any other provision of this Indenture.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 1006, the Company shall promptly
file with the Trustee an Officers' Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities
or property (including cash) receivable by Holders of the Securities
upon the conversion of their Securities after any such
Reclassification, Reorganization or Sale and any adjustment to be made
with respect thereto.
SECTION 1007. TAXES ON SHARES ISSUED.
The issue of stock certificates on conversions of Securities
shall be made without charge to the converting Holder for any documentary, stamp
or similar issue or transfer tax in respect of the issue thereof. The Company
shall not, however, be required to pay any such tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name
other than that of the Holder of any Security converted, and the Company shall
not be required to issue or deliver any such stock certificate unless and until
the Person or Persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 1008. RESERVATION OF SHARES, SHARES TO BE
FULLY PAID; COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF
COMMON SHARES.
Before taking any action which would cause an adjustment
increasing the Conversion Rate to an amount that would cause the Conversion
Price to be reduced below the then par value, if any, of the Common Shares
issuable upon conversion of the Securities, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue such Common Shares at such adjusted
Conversion Rate.
The Company covenants that all Common Shares which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free from all encumbrances with respect to the
issue thereof.
The Company covenants that, if any Common Shares to be
provided for the purpose of conversion of Securities hereunder require
registration with or approval of any
70
governmental authority under any federal or state law before such shares may be
validly issued upon conversion, the Company will in good faith and as
expeditiously as possible, to the extent then permitted by the rules and
interpretations of the SEC (or any successor thereto), endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that, if at any time the Common
Shares shall be listed on the New York Stock Exchange or the Toronto Stock
Exchange (or if the Common Shares are no longer listed on either of such
exchanges, any other national securities exchange or automated quotation
system), the Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the Common Shares
shall be so listed on such exchange or automated quotation system, all Common
Shares issuable upon conversion of the Security; provided that if the rules of
such exchange or automated quotation system permit the Company to defer the
listing of such Common Shares until the first conversion of the Securities into
Common Shares in accordance with the provisions of this Indenture, the Company
covenants to list such Common Shares issuable upon conversion of the Securities
in accordance with the requirements of such exchange or automated quotation
system at such time.
SECTION 1009. RESPONSIBILITY OF TRUSTEE.
The Trustee and any other Conversion Agent shall not at any
time be under any duty or responsibility to any Holder to determine the
Conversion Rate or whether any facts exist which may require any adjustment of
the Conversion Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Conversion Agent shall not be accountable with respect
to the validity or value (or the kind or amount) of any Common Shares, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Security; and the Trustee and any other Conversion Agent make
no representations with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any Common Shares or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article Ten. Without limiting the generality of the foregoing,
neither the Trustee nor any Conversion Agent shall be under any responsibility
to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 1006 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders upon the conversion of their Securities after any event referred to
in such Section 1006 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Article Seven of the Indenture, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, any Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 1010. NOTICE TO HOLDERS PRIOR TO CERTAIN
ACTIONS.
In case:
71
(a) the Company shall declare a dividend (or any
other distribution) on Common Shares that would require an adjustment
in the Conversion Rate pursuant to Section 1005; or
(b) the Company shall authorize the granting to the
holders of all or substantially all of Common Shares of rights or
warrants to subscribe for or purchase any share of any class or any
other rights or warrants; or
(c) of any Reclassification of the Common Shares, or
of any Reorganization for which approval of any shareholders of the
Company is required, or any Sale; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder at his or her address appearing on the register of the Registrar provided
for in the Indenture, as promptly as possible but in any event at least ten (10)
days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Shares of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such Reclassification, Reorganization, Sale, transfer, dissolution, liquidation
or winding up is expected to become effective or occur, and the date as of which
it is expected that holders of Common Shares shall be entitled to exchange their
Common Shares for securities or other property deliverable upon such
Reclassification, Reorganization, Sale, transfer, dissolution, liquidation or
winding up. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of such dividend, distribution, Reclassification,
Reorganization, Sale, transfer, dissolution, liquidation or winding up.
SECTION 1011. SHAREHOLDER RIGHTS PLANS.
Each Common Share issued upon conversion of Securities
pursuant to this Article Ten shall be entitled to receive the appropriate number
of rights, if any, and the certificates representing the Common Shares issued
upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any shareholder rights plan adopted by the Company, as
the same may be amended from time to time. Provided that such rights plan
requires that each Common Share issued upon conversion of Securities at any time
prior to the distribution of separate certificates representing such rights be
entitled to receive such rights, then, notwithstanding anything else to the
contrary in this Article Ten, there shall not be any adjustment to the
conversion privilege or Conversion Rate as a result of the issuance of rights,
the distribution of separate certificates representing the rights, the exercise
or redemption of such rights in accordance with any such rights plan, or the
termination or invalidation of such rights.
SECTION 1012. TRANSFER RESTRICTIONS.
(a) Common Shares issued upon conversion of
Restricted Securities shall be represented by certificates bearing the
Private Placement Legend and shall be subject to the restrictions or
transfer set forth in the Private Placement Legend.
72
(b) Any Common Shares as to which such restrictions
on transfer have lapsed and as to which the conditions for removal of
the Private Placement Legend have been satisfied may, upon surrender of
the certificates representing such Common Shares for exchange in
accordance with the procedures of the transfer agent for the Common
Shares, be exchanged for a new certificate or certificates for a like
number of Common Shares, which shall not bear the Private Placement
Legend.
(c) Common Shares issued on conversion of Securities
before May 20, 2004 (and all securities issued in exchange therefor or
substitution thereof) shall be represented by certificates bearing the
Canadian Legend and shall be subject to the restrictions on transfer
set forth in the Canadian Legend. Any Common Shares which bear the
Canadian Legend may at any time on or after May 20, 2004, on surrender
of the certificates representing such Common Shares for exchange in
accordance with the procedures of the transfer agent for the Common
Shares, be exchanged for a new certificate or certificates for a like
number of Common Shares, which shall not bear the Canadian Legend.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 1101. TRUST INDENTURE ACT CONTROLS.
The Trustee and the Company agree to comply with all
provisions of the TIA applicable to or binding upon it in connection with this
Indenture and any action to be taken hereunder. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision of
the TIA shall control.
SECTION 1102. NOTICES.
Any notice or communication by the Company or the Trustee to
one or both of the others is duly given if in writing and delivered in person,
mailed by first-class mail or by express delivery to the other parties'
addresses stated in this Section 1102. The Company or the Trustee by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication to a Security Holder is duly given
(unless otherwise expressly provided herein) if in writing and mailed by first
class mail to each Security Holder affected by the event at the address shown on
the register kept by the Registrar. Failure to mail a notice or communication to
a Security Holder or any defect in it shall not affect its sufficiency with
respect to other Security Holders.
If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it; provided that
any notice or communication delivered to the Trustee shall be deemed effective
upon actual receipt thereof.
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If the Company mails a notice or communication to Security
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications shall be in writing.
The Company's address is:
Fairmont Hotels & Resorts Inc.
000 Xxxxxxxxxx Xxxxxx Xxxx
XX Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: General Counsel
The Trustee's address is:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
- Global Finance Unit
SECTION 1103. COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS.
Security Holders may communicate pursuant to TIA Section
312(b) with other Security Holders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 1104. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating
that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied
with; and
(ii) an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions
precedent have been complied with.
Each signer of an Officers' Certificate or an Opinion of
Counsel may (if so stated) rely, effectively, upon an Opinion of Counsel as to
legal matters and an Officers' Certificate as to
74
factual matters if such signer reasonably and in good faith believes in the
accuracy of the document relied upon.
SECTION 1105. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION.
Each Officers' Certificate or Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that the person making
such certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature
and scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of
such person, he or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not,
in the opinion of such person, such condition or
covenant has been complied with.
SECTION 1106. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Security Holders. The Registrar, Paying Agent or Conversion Agent may
make reasonable rules and set reasonable requirements for their respective
functions.
SECTION 1107. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open in The City of New York, in the
State of New York, in the City of Toronto, Canada or in the city in which the
Trustee administers its corporate trust business. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on that
payment for the intervening period.
A "BUSINESS DAY" is a day other than a Legal Holiday.
SECTION 1108. NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee,
incorporator or shareholder of the Company, as such, shall have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
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SECTION 1109. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement. Delivery of an executed counterpart by facsimile shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 1110. GOVERNING LAW.
This Indenture and any claim, counterclaim or dispute of any
kind or nature whatsoever arising out of or in any way relating to this
Indenture, directly or indirectly, shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements and
instruments entered into and wholly-performed within the State of New York.
SECTION 1111. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 1112. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind their respective successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 1113. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS.
The Company irrevocably submits to the nonexclusive
jurisdiction of any New York State or Federal court sitting in The City of New
York over any suit, action or proceeding arising out of or relating to this
Indenture or any Security. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may have to the laying of the venue of
any such suit, action or proceeding brought in such a court and any claim that
any such suit, action or proceeding brought in such a court has been brought in
any inconvenient forum. The Company agrees that final judgment in any such suit,
action or proceeding brought in such a court shall be conclusive and binding
upon the Company and may be enforced in the courts of Canada (or any other
courts to the jurisdiction of which the Company is subject) by a suit upon such
judgment, provided that service of process is effected upon the Company in the
manner specified in the following paragraph or as otherwise permitted by law;
provided, however, that the Company does not waive, and the foregoing provisions
of this sentence shall not constitute or be deemed to constitute a waiver of,
(i) any right to appeal any such judgment, to seek any stay or otherwise to seek
reconsideration or review of any such judgment or (ii) any stay of execution or
levy pending an appeal from, or a suit, action or proceeding for reconsideration
or review of, any such judgment.
As long as any of the Securities remain outstanding, the
Company will at all times have an authorized agent in the Borough of Manhattan,
The City of New York upon whom process may be served in any legal action or
proceeding arising out of or relating to the Indenture
76
or any Security. Service of process upon such agent and written notice of such
service mailed or delivered to the Company shall to the extent permitted by law
be deemed in every respect effective service of process upon the Company in any
such legal action or proceeding. The Company hereby appoints CT Corporation
System as its agent for such purpose, and covenants and agrees that service of
process in any such legal action or proceeding may be made upon it at the office
of such agent at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other
address in the Borough of Manhattan, The City of New York, as the Company may
designate by written notice to the Trustee).
The Company hereby consents to process being served in any
suit, action or proceeding of the nature referred to in the preceding paragraphs
by service upon such agent together with the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, to the
address of the Company set forth in the first paragraph of this instrument or to
any other address of which the Company shall have given written notice to the
Trustee. The Company irrevocably waives, to the fullest extent permitted by law,
all claim of error by reason of any such service (but does not waive any right
to assert lack of subject matter jurisdiction) and agrees that such service (i)
shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and
personal delivery to the Company.
Nothing in this Section shall affect the right of the Trustee
or any Holder to serve process in any manner permitted by law or limit the right
of the Trustee to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
SECTION 1114. WAIVER OF JURY TRIAL
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY. NOTWITHSTANDING THE
AGREEMENT BETWEEN THE COMPANY AND THE TRUSTEE IN THE PRECEDING SENTENCE, NOTHING
HEREIN SHALL BE CONSTRUED TO AFFECT THE RIGHT OF HOLDERS TO ASSERT A TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 1115. FORCE MAJEURE.
In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations under this Indenture
arising out of or caused by, directly or indirectly, forces beyond its
reasonable control, including without limitation, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of god.
SECTION 1116. CONVERSION OF CURRENCY.
(a) The Company covenants and agrees that the
following provisions shall apply to conversion of currency in the case
of the Securities and this Indenture:
77
(i) If for the purposes of obtaining
judgment in, or enforcing the judgment of, any court
in any country, it becomes necessary to convert into
any other currency (the "JUDGMENT CURRENCY") an
amount due or contingently due under the Securities
and this Indenture (the "REQUIRED CURRENCY"), then
the conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on
which a final judgment which is not appealable or is
not appealed is given or the order of enforcement is
made, as the case may be (unless a court shall
otherwise determine).
(ii) If there is a change in the rate of
exchange prevailing between the Business Day before
the day on which the judgment referred to in (i)
above is given or an order of enforcement is made, as
the case may be (or such other date as a court shall
determine), and the date of receipt of the amount
due, the Company shall pay such additional (or, as
the case may be, such lesser) amount, if any, as may
be necessary so that the amount paid in the Judgment
Currency when converted at the rate of exchange
prevailing on the date of receipt will produce the
amount in the Required Currency originally due.
(b) In the event of the winding-up of the Company at
any time while any amount or damages owing under the Securities and
this Indenture, or any judgment or order rendered in respect thereof,
shall remain outstanding, the Company shall indemnify and hold the
Holders of Securities and the Trustee harmless against any deficiency
arising or resulting from any variation in rates of exchange between
(1) the date as of which the equivalent of the amount in the Required
Currency (other than under this Section 1116(b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of
proofs of claim in such winding-up. For the purpose of this Section
1116(b) the final date for the filing of proofs of claim in the
winding-up of the Company shall be the date fixed by the liquidator or
otherwise in accordance with the relevant provisions of applicable law
as being the latest practicable date as at which liabilities of the
Company may be ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The obligations contained in Sections 1116(a)(ii)
and (b) of this Section shall constitute separate and independent
obligations of the Company from its other obligations under the
Securities and this Indenture, shall give rise to separate and
independent causes of action against the Company, shall apply
irrespective of any waiver or extension granted by any Holder or
Trustee from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of
claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under Section 1116(b) above) or
under any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual
loss shall be required by the Company or the applicable liquidator. In
the case of Subsection (b) above, the amount of such deficiency shall
not be deemed to be reduced by any
78
variation in rates of exchange occurring between the said final date
and the date of any liquidating distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean the
Bank of Canada noon rate for purchases on the relevant date of the
Required Currency with the Judgment Currency, as reported by Telerate
on screen 3194 (or such other means of reporting the Bank of Canada
noon rate as may be agreed upon by each of the parties to this
Indenture) and includes any premiums and costs of exchange payable.
SECTION 1117. SEPARABILITY.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and a Holder shall have no claim therefor against any party
hereto.
SECTION 1118. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
79
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first above written.
FAIRMONT HOTELS & RESORTS INC.
By: /s/ XXXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President,
Law and Administration
and Corporate Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ XXXXX XXXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
80
EXHIBIT A
[Face of Security]
[INSERT PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND AS REQUIRED]
FAIRMONT HOTELS & RESORTS INC.
3.75% CONVERTIBLE SENIOR NOTE DUE 2023
[Certificate No. _______] CUSIP NO. ____________
ISIN NO. ____________
FAIRMONT HOTELS & RESORTS INC., a corporation incorporated under the Canada
Business Corporations Act (herein called the "COMPANY"), for value received,
hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
UNITED STATES DOLLARS ($ ) on December 1, 2023, and to pay interest thereon, as
provided on the reverse hereof, until the principal and any unpaid and accrued
interest is paid or duly provided for.
Interest Payment Dates: June 1 and December 1, with the first
payment to be made on June 1, 2004.
Record Dates: May 15 and November 15.
The provisions on the back of this certificate are
incorporated as if set forth on the face hereof.
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IN WITNESS WHEREOF, FAIRMONT HOTELS & RESORTS INC. has caused
this instrument to be duly signed.
FAIRMONT HOTELS & RESORTS INC.
By:_____________________________
Name:
Title:
Dated: ______________
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
By:__________________________________
Authorized Signatory
Dated: ____________
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[REVERSE OF SECURITY]
FAIRMONT HOTELS & RESORTS INC.
3.75% CONVERTIBLE SENIOR NOTE DUE 2023
(1) INTEREST. FAIRMONT HOTELS & RESORTS INC., a corporation incorporated
under the Canada Business Corporations Act (the "COMPANY"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. Unless earlier converted, redeemed or purchased by the Company, the
Company will pay interest semi-annually on June 1 and December 1 of each year,
with the first payment to be made on June 1, 2004. Interest on the Securities
will accrue on the principal amount from the most recent date to which interest
has been paid or provided for or, if no interest has been paid, from December 8,
2003. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) MATURITY. The Securities will mature on December 1, 2023.
(3) METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered Holders of
Securities at the Close of Business on the record date set forth on the face of
this Security next preceding the applicable interest payment date. Holders must
surrender Securities to a Paying Agent to collect the principal, Redemption
Price, Designated Event Purchase Price or Purchase Price of the Securities. The
Company will pay all amounts due with respect to the Securities in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. If this Security is in global form, the Company will pay
interest on the Securities by wire transfer of immediately available funds to
the account specified by the Holder. With respect to Securities held other than
in global form, the Company will make payments by wire transfer of immediately
available funds to the account specified by the Holders thereof or, if no such
account is specified with respect to a Holder, by mailing a check to the
Holder's registered address.
(4) PAYING AGENT, REGISTRAR, CONVERSION AGENT. Initially, The Bank of New
York (the "TRUSTEE") will act as Paying Agent, Registrar and Conversion Agent.
The Company may change any Paying Agent, Registrar or Conversion Agent without
notice to the Holders. The Company may act in any such capacity.
(5) INDENTURE. The Securities are issued under an Indenture dated as of
December 8, 2003 (the "INDENTURE") between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (the
"TIA") as in effect on the date of the Indenture. The Securities are subject to
all such terms, and Security Holders are referred to the Indenture and the TIA
for a statement of such terms. The Securities are general unsecured obligations
of the Company limited to $270,000,000 aggregate principal amount, except as
otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen
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Securities). Terms used herein which are defined in the Indenture have the
meanings assigned to them in the Indenture.
(6) ADDITIONAL AMOUNTS. The Company will pay to the Holders such Additional
Amounts as may become payable under Section 407 of the Indenture.
(7) OPTIONAL REDEMPTION. Except as provided in Section 308 of the
Indenture, the Company will not have the right to redeem any Securities prior to
January 20, 2009. On or after January 20, 2009, the Company may, at its option,
redeem the Securities, in whole or in part, at a Redemption Price equal to 100%
of the principal amount of the Securities to be redeemed, together with accrued
and unpaid interest to, but excluding, the Redemption Date. No sinking fund is
provided for the Securities.
(8) NOTICE OF REDEMPTION. Subject to Section 308 of the Indenture, notice
of redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each Holder of Securities to be redeemed at its
registered address. Securities in denominations larger than $1,000 principal
amount may be redeemed in part but only in positive integral multiples of $1,000
principal amount. On and after the Redemption Date, interest ceases to accrue on
Securities or portions of them called for redemption.
(9) REDEMPTION FOR TAX REASONS. The Company may, at its option, redeem the
Securities, in whole but not in part, at a Redemption Price equal to 100% of the
principal amount thereof together with accrued and unpaid interest, if any, to,
but excluding, the Redemption Date, if the Company has become or would become
obligated to pay to the Holders Additional Amounts (which are more than a de
minimis amount) as a result of any amendment or change occurring after December
2, 2003 in the laws or any regulations of Canada or any Canadian political
subdivision or taxing authority, or any change occurring after December 2, 2003
in the interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency, taxing authority or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory or administrative determination); provided the
Company cannot avoid these obligations by taking reasonable measures available
to it and that it delivers to the Trustee an opinion of Canadian legal counsel
specializing in taxation and an Officers' Certificate attesting to such change
and obligation to pay Additional Amounts. The Company will not and will not
cause any Paying Agent or the Trustee to deduct from such Redemption Price any
amounts on account of, or in respect of, any Canadian Taxes other than Excluded
Taxes (except in respect of certain Excluded Holders). In such event, the
Company will give the Trustee and the Holders of the Securities not less than 30
days' nor more than 60 days' notice of this redemption, except that (i) the
Company will not give notice of redemption earlier than 60 days prior to the
earliest date on or from which it would be obligated to pay any such Additional
Amounts, and (ii) at the time the Company gives the notice, the circumstances
creating its obligation to pay such Additional Amounts remain in effect.
Upon receiving such notice of redemption, each Holder who does
not wish to have the Company redeem its Securities pursuant to Section 308 of
the Indenture can elect to (i) convert its Securities pursuant to Article Ten of
the Indenture or (ii) not have its Securities redeemed, provided that no
Additional Amounts will be payable on any payment of interest or principal with
respect to the Securities after such Redemption Date. All future payments will
be
A-4
subject to the deduction or withholding of any Canadian Taxes required to be
deducted or withheld.
Where no such election is made, the Holder will have its
Securities redeemed without any further action. If a Holder does not elect to
convert its Securities pursuant to Article Ten of the Indenture but wishes to
elect to not have its Securities redeemed, such Holder must deliver to the
Company (if the Company is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the notice of redemption, a
written Notice of Election (the "NOTICE OF ELECTION") on the back of this
Security, or any other form of written notice substantially similar to the
Notice of Election, in each case, duly completed and signed, so as to be
received by the Paying Agent no later than the Close of Business on a Business
Day at least five Business Days prior to the Redemption Date.
A Holder may withdraw any Notice of Election by delivering to
the Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company in the notice of redemption, a written notice of
withdrawal prior to the Close of Business on the Business Day prior to the
Redemption Date.
(10) PURCHASE AT THE OPTION OF HOLDERS. Securities shall be purchased by the
Company at the option of the Holder on January 20, 2009, December 1, 2013, and
December 1, 2018 (each, a "PURCHASE DATE"), at a purchase price equal to 100% of
the principal amount of those Securities (the "PURCHASE PRICE") plus accrued and
unpaid interest to, but excluding, the Purchase Date; provided that, with
respect to the December 1, 2013 and December 1, 2018 Purchase Dates, such
interest will be paid to Holders of record on the Close of Business on the
record date immediately preceding such Purchase Date.
The Company shall, no less than twenty-five Business Days
prior to the Purchase Date, give notice to Holders at their addresses shown in
the register of the Registrar and to beneficial owners as required by law (the
"COMPANY PURCHASE NOTICE").
Purchases of Securities hereunder shall be made, at the option
of the Holder thereof, upon delivery (i) to the Company (if it is acting as its
own Paying Agent), or to a Paying Agent by the Holder of a written notice of
purchase (a "PURCHASE NOTICE") at any time during the period beginning on the
opening of business on the date that is 25 Business Days prior to the relevant
Purchase Date and ending at the Close of Business on the fifth Business Day
prior to such Purchase Date and (ii) of such Security to the Paying Agent at any
time after delivery of the Purchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to Section 310 of
the Indenture only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Purchase
Notice.
The Purchase Notice shall state (i) the certificate number of
the Security which the Holder will deliver to be purchased or the appropriate
Depositary procedures if Physical Securities have not been issued, (ii) the
portion of the principal amount of the Security which the Holder will deliver to
be purchased, which portion must be in principal amounts of $1,000 or a positive
integral multiple of $1,000, and (iii) that such Security shall be purchased by
the
A-5
Company as of the Purchase Date pursuant to the terms and conditions specified
in the Securities and in the Indenture.
Any purchase by the Company contemplated pursuant to the
provisions of Section 310 of the Indenture shall be consummated by the delivery
of the consideration to be received by the Holder promptly following the later
of the Purchase Date and the time of book-entry transfer or delivery of the
Security.
A Holder may withdraw any Purchase Notice by delivering a
written notice of withdrawal delivered to the Company (if it is acting as its
own Paying Agent), or to a Paying Agent designated by the Company, at any time
prior to the Close of Business on the Business Day immediately preceding the
Purchase Date, specifying the certificate number of the Security in respect of
which such notice of withdrawal is being submitted (if applicable), the
principal amount of the Security with respect to which such notice of withdrawal
is being submitted, and the principal amount of such Security, if any, which
remains subject to the original Purchase Notice and which has been or will be
delivered for purchase by the Company.
(11) DESIGNATED EVENT PURCHASE OFFER. In the event of a Designated Event
with respect to the Company, the Company will be required to make an offer to
purchase for cash ("DESIGNATED EVENT PURCHASE OFFER") all outstanding Securities
in positive integral multiples of $1,000 principal amount at a price equal to
100% of the principal amount of such Securities ("DESIGNATED EVENT PURCHASE
PRICE") plus any accrued and unpaid interest to, but excluding, the Designated
Event Purchase Date. The Company shall be required to purchase Securities in
respect of which such offer is accepted by a Holder no later than 30 Business
Days after a Designated Event Notice has been mailed ("DESIGNATED EVENT PURCHASE
DATE").
Within 30 Business Days after the occurrence of a Designated
Event with respect to the Company, the Company shall mail to the Trustee and all
Holders of the Securities at their addresses shown in the register of the
Registrar, and to beneficial owners of the Securities as may be required by
applicable law, a notice (the "DESIGNATED EVENT NOTICE") of the occurrence of
such Designated Event and the Designated Event Purchase Offer arising as a
result thereof.
To accept the Designated Event Purchase Offer, a Holder of
Securities must deliver to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose in the
Designated Event Notice and the Trustee, on or before the Close of Business on
the third Business Day immediately preceding the Designated Event Purchase Date,
(i) written notice of acceptance of the Designated Event Purchase Offer in the
form set forth in the Designated Event Purchase Offer Acceptance Notice on the
back of this Security ("DESIGNATED EVENT PURCHASE NOTICE"), or any other form of
written notice substantially similar to the Designated Event Purchase Notice, in
each case, duly completed and signed, with appropriate signature guarantee, and
(ii) such Securities that the Holder wishes to tender for purchase by the
Company pursuant to the Designated Event Offer, duly endorsed for transfer to
the Company.
A-6
Such Holder of such Securities shall be entitled to receive
from the Company (if it is acting as its own Paying Agent), or such Paying Agent
a nontransferable receipt of deposit evidencing such deposit.
A Holder may withdraw any acceptance of the Designated Event
Purchase Offer by delivering a written notice of withdrawal delivered to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company, at any time prior to the Close of Business on the
Business Day prior to the Designated Event Purchase Date, specifying the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted (if applicable), the principal amount of the Security with
respect to which such notice of withdrawal is being submitted, and the principal
amount, if any, of such Security which remains subject to the original
Designated Event Purchase Notice and which has been or will be delivered for
purchase by the Company. The Paying Agent shall promptly notify the Company of
the receipt by it of any Designated Event Purchase Notice or written notice of
withdrawal thereof.
(12) CONVERSION. Subject to and upon compliance with the provisions of the
Indenture, prior to the Close of Business on December 1, 2023, the Holder of any
Security shall have the right, at such Holder's option, to convert the principal
amount of the Security, or any portion of such principal amount that is a
positive integral multiple of $1,000, into (subject to the Company Cash
Conversion Option pursuant to Section 1002 of the Indenture) fully paid and
non-assessable Common Shares (as such shares shall then be constituted) at the
Conversion Rate in effect at such time, solely upon the occurrence of one or
more of the following events:
(a) commencing after March 31, 2004, Securities may be
surrendered for conversion during any fiscal quarter
of the Company (and only during such fiscal quarter),
if, as of the last Trading Day of the immediately
preceding fiscal quarter, the Closing Sale Price for
at least twenty (20) Trading Days in the thirty (30)
consecutive Trading Day period ending on the last
Trading Day of such immediately preceding fiscal
quarter exceeds 120% of the Conversion Price in
effect on such 30th Trading Day;
(b) the Securities may be surrendered for conversion into
Common Shares during the five Business Day period
(and only during any such period) following any five
consecutive Trading Day period in which the daily
average of the Trading Prices for the Securities for
such five (5) Trading Day Period was less than 98% of
the average Conversion Value for the Securities
during such period; provided however, that after
December 1, 2018, if on the date of any Conversion
pursuant to this condition, the Closing Sale Price of
the Common Shares is greater than the Conversion
Price per share but less than 120% of the Conversion
Price per share, then Holders shall receive, in lieu
of Common Shares based on the Conversion Rate, Common
Shares , subject to the Company's Cash Conversion
Option pursuant to Section 1002 of the Indenture,
having a value (determined as provided in the
Indenture) equal to the principal amount of such
Securities, plus accrued and unpaid interest, if any;
A-7
(c) if any Securities have been called for redemption,
such Securities (and only such Securities) may be
surrendered for conversion, at any time on or after
the date the Redemption Notice has been given until
the Close of Business on the Business Day immediately
preceding the Redemption Date, after which time the
right to convert shall expire unless the Company
defaults in the payment of the Redemption Price; and
(d) upon the occurrence of certain corporate events
specified in Section 1001 of the Indenture.
Subject to and upon compliance with the provisions of the
Indenture, each Security will initially be convertible into 26.5041 fully paid
and non-assessable Common Shares, as said shares shall be constituted at the
date of conversion, per $1,000 principal amount of Securities or portion thereof
to be converted or such Conversion Rate as adjusted from time to time as
provided in the Indenture, upon surrender of this Security, together with a
Conversion Notice as provided in the Indenture, to the Conversion Agent and,
unless the Common Shares issuable on conversion are to be issued in the same
name as this Security, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Conversion Agent duly executed by the
Holder or by its duly authorized attorney.
On or after January 20, 2009, the Company has the option (the
"COMPANY CASH CONVERSION OPTION") to deliver cash in lieu of some or all of the
Common Shares issuable upon conversion of this Security. The Company will give
notice of its election of the Company Cash Conversion Option within two Business
Days of its receipt of the Holder's Conversion Notice, unless the Company has
already informed Holders of its election in connection with a Redemption Notice.
Such notice shall state (1) the Company's intention to deliver cash in lieu of
some or all other Common Shares otherwise deliverable, (2) if a combination
thereof, the number of Common Shares per $1,000 principal amount of Security for
which cash will be delivered in lieu of delivery of such Common Shares and (3)
the method for calculating the amount of cash to be delivered per Common Share.
No fractional Common Shares will be issued upon any
conversion, but an adjustment and payment in cash will be made, as provided in
the Indenture, in respect of any fraction of a Common Share which would
otherwise be issuable upon the surrender of any Security for conversion.
(13) DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons in denominations of $1,000 principal amount and positive
integral multiples of $1,000 principal amount. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. 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. The Registrar need not exchange or register the transfer
of any Security selected for redemption in whole or in part, except the
unredeemed portion of Securities to be redeemed in part. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
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before the mailing of a notice of redemption of the Securities selected to be
redeemed and in certain other circumstances provided in the Indenture.
(14) PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as the owner of such Security for all purposes.
(15) MERGER OR CONSOLIDATION. The Company shall not consolidate, amalgamate
or merge with or into any other Person, enter into a binding share exchange or
sell, convey, transfer or lease all or substantially all of its properties and
assets to another person (including in any such case under a statutory
arrangement) unless (a) the Company shall be the continuing corporation or (b)
the resulting, surviving or transferee Person is a corporation organized under
the laws of the United States, any State thereof, the District of Columbia, the
laws of Canada or any province or territory thereof; such Person assumes by
supplemental indenture all the obligations of the Company, under the Securities
and this Indenture; and immediately after giving effect to the transaction, no
Default or Event of Default shall exist; provided, however, for purposes of the
foregoing, the sale, conveyance, transfer or lease (in a single transaction or a
series of transactions) of the properties or assets of one or more Subsidiaries
(other than to the Company or another wholly-owned Subsidiary) which, if such
properties or assets were directly owned by the Company, would constitute all or
substantially all of its properties and assets on a consolidated basis, shall be
deemed to be a sale, conveyance, transfer or lease of all or substantially all
of the Company's properties and assets.
(16) AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or the consent of
any Security Holder, the Indenture or the Securities may be amended or
supplemented to evidence a successor to the Company and the assumption by that
successor of the obligations under the Securities and the Indenture, to add to
the covenants of the Company described in the Indenture for the benefit of
Security Holders or to surrender any right or power conferred upon the Company,
to secure the obligations of the Company in respect of the Securities, to make
any changes or modifications to the Indenture necessary in connection with the
registration of the Securities under the Securities Act and the qualification of
the Indenture under the TIA, or to cure any ambiguity or inconsistency in the
Indenture.
(17) DEFAULTS AND REMEDIES. "Event of Default" is defined in Section 601 of
the Indenture. If an Event of Default (other than an Event of Default specified
in Section 601(v) or (vi) of the Indenture with respect to the Company or any
Significant Subsidiary) occurs and is continuing, the Trustee by notice to the
Company or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding by notice to the Company and the Trustee may declare
the principal amount of the Securities plus accrued and unpaid interest, if any,
on the Securities accrued through the date of such declaration, to be
immediately due and payable. If an Event of Default specified in Section 601(v)
or (vi) of the Indenture with respect to the Company or any Significant
Subsidiary occurs, the principal amount of the Securities plus accrued and
unpaid interest, if any, accrued thereon through the occurrence of such event
shall
A-9
automatically become and be immediately due and payable, without any declaration
or other act on the part of the Trustee or any Security Holder.
(18) REGISTRATION RIGHTS. The Holders are entitled to registration rights as
set forth in the Registration Rights Agreement. The Holders shall be entitled to
receive Additional Interest Amount in the event of a "registration default" in
certain circumstances, all as set forth in the Registration Rights Agreement.
(19) TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the Indenture, or
any banking institution serving as successor Trustee thereunder, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
(20) NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee or stockholder, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Security Holder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
(21) AUTHENTICATION. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
(22) GOVERNING LAW. This Security and any claim, counterclaim or dispute of
any kind or nature whatsoever arising out of or in any way relating to this
Security, directly or indirectly, shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements and
instruments entered into and wholly-performed within the State of New York.
(23) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Security Holder or an assignee, such as: TEN COM (= tenants in common), TENENT
(= tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITY HOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
Fairmont Hotels & Resorts Inc.
000 Xxxxxxxxxx Xxxxxx Xxxx
XX Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile: 000-000-0000
Attention: General Counsel
A-10
FORM OF ASSIGNMENT
I or we assign to:
_________________________________________________________________________
(Please insert social security or other identifying number )
____________________________________________________________________
____________________________________________________________________
(please print or type name and address)
the within Security and all rights thereunder, and hereby irrevocably constitute
and appoint:
____________________________________________________________________
Attorney to transfer the Security on the books of the Company with full power of
substitution in the premises.
Dated: ____________ Signed:________________________________
________________________________
NOTICE: The signature(s) on this assignment must correspond
with the name as it appears upon the face of the within
Security in every particular without alteration or enlargement
or any change whatsoever and be guaranteed by a guarantor
institution participating in the Securities Transfer Agents
Medallion Program or in such other guarantee program
acceptable to the Trustee.
Signature Guarantee: ___________________________________
In connection with any transfer of this Security occurring
prior to the date of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with transfer:
[Check One]
(1) ____ to the Company or any subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the U.S.
Securities Act of 1933, as amended; or
A-11
(3) ____ outside the United States to a person other than a "U.S. person"
in compliance with Rule 904 of Regulation S under the U.S.
Securities Act of 1933, as amended; or
(4) ____ pursuant to the exemption from registration provided by Rule 144
under the U.S. Securities Act of 1933, as amended; or
(5) ____ pursuant to an effective registration statement under the U.S.
Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the U.S. Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company. (If the Security is
transferred to an Affiliate, the restrictive legend must remain on the Security
for two years following the date of the transfer).
Unless one of the items is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; provided, however, that if items (3),
(4) or (5) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications and other information as the Trustee or
the Company have reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar shall not
be obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 216 of the Indenture shall have
been satisfied.
Dated: ______________ Signed:___________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
___________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A
A-12
under the U.S. Securities Act of 1933, as amended, and is aware that the sale to
it is being made in reliance on Rule 144A. The undersigned acknowledges that it
has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A, and that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _________________ Signed:__________________________________
NOTICE: To be executed by an
executive officer of Purchaser
A-13
CONVERSION NOTICE
To convert this Security into Common Shares of the Company, check the box: [ ]
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$____________________
If you want the stock certificate made out in another person's name, fill in the
form below:
_______________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(Print or type other person's name, address and zip code)
_______________________________________________________________________
Date:____________________ Signature(s):____________________________
(Sign exactly as your name(s)
appear(s) on the other side
of this Security)
Signature(s) guaranteed by:
________________________________
(All signatures must be
guaranteed by a guarantor
institution participating
in the Securities Transfer
Agents Medallion Program or
in such other guarantee
program acceptable to the
Trustee.)
A-14
DESIGNATED EVENT PURCHASE OFFER ACCEPTANCE NOTICE
Certificate No. of Security: ___________
If you elect to have this Security purchased by the Company
pursuant to Section 309 of the Indenture, check the box: [ ]
If you elect to have only part of this Security purchased by
the Company pursuant to Section 309 of the Indenture, state the principal
amount:
$__________________________
(must be in an integral multiple of $1,000)
The undersigned hereby accepts the Designated Event Purchase
Offer pursuant to the applicable provisions of the Securities.
Date: ___________________ Signature(s):__________________________________
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
Signature(s) guaranteed by:
___________________________________
(All signatures must be guaranteed
by a guarantor institution
participating in the Securities
Transfer Agents Medallion Program
or in such other guarantee program
acceptable to the Trustee.)
A-15
NOTICE OF ELECTION UPON TAX REDEMPTION
Certificate No. of Security: ___________
If you elect not to have this Security redeemed by the Company
pursuant to Section 308 of the Indenture, check the box: [ ]
If you elect to have only part of this Security redeemed by
the Company pursuant to Section 308 of the Indenture, state the principal
amount:
$____________________________
(must be in an integral multiple of $1,000)
Date: _________________ Signature(s):__________________________________
(Sign exactly as your name(s)
appear(s) on the other side of this
Security)
Signature(s) guaranteed by:
___________________________________
(All signatures must be guaranteed
by a guarantor institution
participating in the Securities
Transfer Agents Medallion Program
or in such other guarantee program
acceptable to the Trustee.)
A-16
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for
an interest in another Global Security or for Securities in certificated form,
have been made:
Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Principal amount of this Principal amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease (or increase) Custodian
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
---------------------
This is included in Global Securities only.
Schedule X-0
XXXXXXX X-0
FORM OF PRIVATE PLACEMENT LEGEND
THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"U.S. SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIROR:
(1) REPRESENTS THAT:
(A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A "QUALIFIED
INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER
THE U.S. SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT; OR
(B) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S
UNDER THE U.S. SECURITIES ACT),
(2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING
TRANSACTIONS INVOLVING THIS SECURITY OR THE COMMON SHARES ISSUABLE
UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE U.S
SECURITIES ACT, AND
(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL
INTEREST HEREIN, PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO
YEARS AFTER THE LATER OF THE LAST ORIGINAL ISSUE DATE HEREOF (WHICH
WOULD INCLUDE THE EXERCISE OF THE INITIAL PURCHASERS' OPTION) AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT ONLY:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE U.S. SECURITIES ACT;
B-1-2
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE U.S. SECURITIES ACT;
(D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE U.S. SECURITIES ACT; OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH
(3)(C) OR (D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE
(THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE
DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH (3)(E) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE U.S. SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS
MADE AS TO THE AVAILABILITY OF ANY RULE 144A EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
X-0-0
XXXXXXX X-0
FORM OF LEGEND FOR GLOBAL SECURITY
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required in
the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 216 OF THE INDENTURE.
X-0-0
XXXXXXX X-0
FORM OF CANADIAN LEGEND
[Canadian Legend: Include the following legend only for
Securities or Common Shares issued on the conversion thereof, in either case,
issued before May 20, 2004]
BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS SECURITY
REPRESENTS THAT IT IS NOT A CANADIAN PERSON (AS DEFINED IN THE INDENTURE (THE
"INDENTURE") OF FAIRMONT HOTELS & RESORTS INC. DATED DECEMBER 8, 2003) AND
AGREES THAT IT WILL NOT TRADE, RESELL OR OTHERWISE TRANSFER THIS SECURITY IN ANY
PROVINCE OR TERRITORY OF CANADA OR TO ANY CANADIAN PERSON (AS DEFINED IN THE
INDENTURE) BEFORE MAY 20, 2004.
X-0-0
XXXXXXX X-0
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration - Global Finance Unit
Re: FAIRMONT HOTELS & RESORTS INC. (the "COMPANY")
3.75% Convertible Senior Notes due 2023 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "U.S. Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Securities was made in an
"offshore transaction" to a person other than a "U.S. person"
(as defined in Regulation S);
(2) either (a) at the time the buy offer was
originated, the transferee was outside the United States or we
and any person acting on our behalf reasonably believed that
the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made
in the United States in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of the U.S.
Securities Act;
(5) we have advised the transferee of the
transfer restrictions applicable to the Securities; and
(6) if we are a dealer in securities or have
received a selling concession, fee or other remuneration in
respect of the Securities, and the transfer is to occur during
the Restricted Period, then the requirements of Rule 904(c)(1)
have been satisfied.
D-1-1
You, the Company and counsel for the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
_______________________________
Authorized Signature
D-1-2
EXHIBIT E
Form of Notice of Transfer Pursuant to Registration Statement
FAIRMONT HOTELS & RESORTS INC.
000 Xxxxxxxxxx Xxxxxx Xxxx
XX Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration - Global Finance Unit
Re: FAIRMONT HOTELS & RESORTS INC. (the "COMPANY")
3.75% Convertible Senior Notes due 2023 (the "SECURITIES")
Ladies and Gentlemen:
Please be advised that _____________ has transferred
$___________ aggregate principal amount of the Securities or __ Common Shares,
of the Company issuable on conversion of the Securities ("STOCK") pursuant to an
effective Shelf Registration Statement on Form F-10 (File No. 333-________).
We hereby certify that the prospectus delivery requirements,
if any, of the Securities Act of 1933 as amended, have been satisfied with
respect to the transfer described above and that the above-named beneficial
owner of the Securities or Stock is named as a "SELLING SECURITY HOLDER" in the
Prospectus dated _________, or in amendments or supplements thereto, and that
the aggregate principal amount of the Securities, or number of shares of Stock
transferred are [a portion of] the Securities or Stock listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
_____________________________
(Name)
E-1
EXHIBIT F
Form of Opinion of Counsel in Connection with Registration of Securities
[Name]
[Address]
Re: FAIRMONT HOTELS & RESORTS INC. (the "COMPANY")
3.75% Convertible Senior Notes due 2023 (the "SECURITIES")
Ladies and Gentlemen:
Reference is made to the Securities issued pursuant to a
certain indenture dated as of December 8, 2003 by and between the Company and
The Bank of New York, as trustee (the "TRUSTEE"). The Company issued
$270,000,000 aggregate principal amount of Securities on December 8, 2003 in
transactions exempt from registration under the Securities Act of 1933, as
amended (the "U.S. SECURITIES ACT"). The Company has filed with the Securities
and Exchange Commission (the "SEC") a registration statement on Form F-10 (File
No. 333-____) (the "REGISTRATION STATEMENT") relating to the registration under
the U.S. Securities Act of $______________ principal amount of the Securities
and the Common Shares of the Company (the "SHARES") issuable upon conversion of
the Securities being registered.
We have acted as United States counsel to the Company in
connection with the issuance of the Securities and the preparation and filing of
the Registration Statement and are familiar with the Securities, the Indenture,
the Registration Statement, and such other documents as are necessary to render
this opinion. We have examined such corporate and other proceedings of the
Company relating to the issuance of the Securities and such other records,
documents and matters of law as we have considered relevant in connection with
rendering the opinion expressed in this opinion letter. In rendering our
opinions set forth in paragraphs (1) and (3) below, we have relied solely upon
the oral advice of the staff of the SEC.
Based on the foregoing, and subject to the qualifications and
limitations stated below, we advise you that in our opinion (1) the Registration
Statement has become effective under the U.S. Securities Act and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued, (2) assuming that the Securities covered by the
Registration Statement and the Shares issuable upon conversion of such
Securities are sold by a relevant Holder specified in the Registration Statement
in a manner specified in the Registration Statement, such sale of the Securities
and Shares issuable upon conversion of the Securities will have been duly
registered under the U.S. Securities Act and (3) the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended.
This opinion letter is limited to the federal laws of the
United States of America. This letter is being delivered solely for the benefit
of the person to whom it is addressed; accordingly, it may not be relied upon by
any other person, quoted, filed with any governmental authority or other
regulatory agency or otherwise circulated or utilized for any other purpose
F-1
without our prior written consent. We assume no obligation to update or
supplement this letter to reflect any facts or circumstances which may hereafter
come to our attention with respect to the opinions expressed above, including
any changes in applicable law which may hereafter occur.
Yours truly,
F-2
