Exhibit 4.3
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Louisiana-Pacific Acquisition Inc.
Issuer
Louisiana-Pacific Corporation
Guarantor
and
Laurentian Trust of Canada Inc.
as Trustee
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Indenture
DATED AS OF SEPTEMBER 14, 1999
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SENIOR INSTALLMENT NOTES
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Table of Contents
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PAGE
Recitals of the Company and the Guarantor..........................................................................1
Form of Face of Security..................................................................................1
Form of Reverse of Security...............................................................................4
Trustee's Certificate of Authentication...................................................................7
Article I. Definitions............................................................................................8
Section 1.01. Certain Terms Defined...................................................................8
Act..............................................................................................8
Affiliate........................................................................................8
Authenticating Agent.............................................................................8
Board of Directors...............................................................................8
Board Resolution.................................................................................8
Business Day.....................................................................................8
Canadian LIBOR Rate..............................................................................9
Common Shares....................................................................................9
Company..........................................................................................9
Company Request or Company Order.................................................................9
Corporate Trust Office...........................................................................9
Covenant Defeasance..............................................................................9
Default..........................................................................................9
Defaulted Interest..............................................................................10
Defeasance......................................................................................10
Event of Default................................................................................10
Guarantee.......................................................................................10
Guarantor.......................................................................................10
Holder..........................................................................................10
Indenture.......................................................................................10
Interest .......................................................................................10
Interest Payment Date...........................................................................10
Interest Period.................................................................................11
Margin..........................................................................................11
Material Adverse Effect.........................................................................11
Maturity........................................................................................11
Maturity Date...................................................................................11
Notice of Default...............................................................................12
Officer's Certificate...........................................................................12
Opinion of Counsel..............................................................................12
Outstanding.....................................................................................12
Person..........................................................................................13
Predecessor Security............................................................................13
Principal Installment...........................................................................13
PAGE
Regular Record Date.............................................................................13
Responsible Officer.............................................................................13
Securities......................................................................................13
Security Register and Security Registrar........................................................13
Special Record Date.............................................................................14
Stated Maturity.................................................................................14
Subsidiary......................................................................................14
Trustee .......................................................................................14
Vice President..................................................................................14
Article II. The Securities.......................................................................................15
Section 2.01. Designation of Securities; Principal Amount; Maturity..................................15
Section 2.02. Form of Securities and Trustee's Certificate of Authentication.........................15
Section 2.03. Date and Denominations.................................................................16
Section 2.04. Execution, Authentication and Delivery of Securities...................................16
Section 2.05. Registration of Transfer and Exchange..................................................17
Section 2.06. Temporary Securities...................................................................17
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities......................................18
Section 2.08. Cancellation of Surrendered Securities.................................................19
Section 2.09. Payment of Interest; Interest Rights Preserved.........................................19
Section 2.10. Persons Deemed Owners..................................................................20
Section 2.11. Computation of Interest................................................................21
Article III. Defeasance and Covenant Defeasance..................................................................21
Section 3.01. Defeasance and Discharge...............................................................21
Section 3.02. Covenant Defeasance....................................................................21
Section 3.03. Conditions to Defeasance or Covenant Defeasance........................................22
Section 3.04. Deposited Money to be Held in Trust; Other Miscellaneous
Provisions.............................................................................22
Section 3.05. Reinstatement..........................................................................23
Article IV. Particular Covenants of the Company..................................................................23
Section 4.01. Payment of Principal and Interest on Securities........................................23
Section 4.02. Maintenance of Office or Agency........................................................23
Section 4.03. Money for Securities Payments to be Held in Trust......................................24
Section 4.04. Payment of Taxes and Other Claims......................................................25
Section 4.05. Maintenance of Properties..............................................................25
Section 4.06. Existence..............................................................................25
Section 4.07. Compliance with Laws...................................................................25
Section 4.08. Statement by Officers as to Default....................................................26
Section 4.09. Waiver of Certain Covenants............................................................26
Article V. Securities Holders' Lists And Reports By
The Company And The Trustee..............................................................................26
(ii)
PAGE
Section 5.01. Company to Furnish Trustee Names and Addresses of Holders..............................26
Section 5.02. Preservation of Information............................................................26
Article VI. Default..............................................................................................27
Section 6.01. Event of Default.......................................................................27
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal; Suits for
Enforcement by Trustee.................................................................29
Section 6.03. Application of Money Collected by Trustee..............................................30
Section 6.04. Limitation on Suits by Holders of Securities...........................................30
Section 6.05. Rights and Remedies Cumulative; Delay or Omission in Exercise
of Rights not a Waiver of Event of Default.............................................31
Section 6.06. Rights of Holders of Majority in Principal Amount of Outstanding
Securities to Direct Trustee...........................................................31
Section 6.07. Requirement of an Undertaking to Pay Costs in Certain Suits
Under the Indenture or Against the Trustee.............................................31
Section 6.08. Notice of Defaults.....................................................................32
Section 6.09. Unconditional Right of Holders to Receive Principal and Interest.......................32
Section 6.10. Restoration of Rights and Remedies.....................................................32
Section 6.11. Trustee May File Proofs of Claims......................................................32
Article VII. Concerning the Trustee..............................................................................33
Section 7.01. Certain Duties and Responsibilities....................................................33
Section 7.02. Certain Rights of Trustee..............................................................33
Section 7.03. Not Responsible for Recitals or Issuance of Securities.................................34
Section 7.04. May Hold Securities....................................................................34
Section 7.05. Money Held in Trust....................................................................34
Section 7.06. Compensation and Reimbursement.........................................................34
Section 7.07. Disqualification; Conflicting Interests................................................35
Section 7.08. Corporate Trustee Required Eligibility.................................................35
Section 7.09. Resignation and Removal; Appointment of Successor......................................35
Section 7.10. Acceptance of Appointment by Successor.................................................36
Section 7.11. Merger, Conversion, Consolidation, or Succession to Business...........................37
Section 7.12. Appointment of Authenticating Agent....................................................37
Section 7.13. Trustee's Application for Instruction from the Company.................................39
Article VIII. Supplemental Indentures And Certain Actions.........................................................39
Section 8.01. Purposes for Which Supplemental Indentures May Be Entered Into
Without Consent of Holders.............................................................39
Section 8.02. Modification of Indenture With Consent of Holders of at Least a
Majority in Principal Amount of Outstanding Securities.................................40
Section 8.03. Execution of Supplemental Indentures...................................................41
Section 8.04. Effect of Supplemental Indentures......................................................41
Section 8.05. Reference in Securities to Supplemental Indentures.....................................41
(iii)
PAGE
Article IX. Consolidation, Merger, Sale, or Transfer.............................................................41
Section 9.01. Consolidations and Mergers of Company and Sales Permitted Only
on Certain Terms.......................................................................41
Article X. Satisfaction and Discharge of Indenture...............................................................42
Section 10.01. Satisfaction and Discharge of Indenture................................................42
Section 10.02. Application of Trust Money.............................................................42
Article XI. Guarantee............................................................................................43
Section 11.01. Guarantee..............................................................................43
Section 11.02. Execution and Delivery of Guarantee....................................................43
Section 11.03. Consolidations and Mergers of Guarantor and Sales Permitted
Only on Certain Terms..................................................................44
Article XII. Miscellaneous Provisions............................................................................44
Section 12.01. Successors and Assigns of Company Bound by Indenture...................................44
Section 12.02. Service of Required Notice to Trustee and Company......................................44
Section 12.03. Service of Required Notice to Holders; Waiver..........................................45
Section 12.04. Indenture and Securities to be Construed in Accordance with the
Laws of the State of New York..........................................................45
Section 12.05. Compliance Certificates and Opinions...................................................45
Section 12.06. Form of Documents Delivered to Trustee.................................................46
Section 12.07. Payments Due on Non-Business Days......................................................46
Section 12.08. Invalidity of Particular Provisions....................................................46
Section 12.09. Indenture May be Executed In Counterparts..............................................46
Section 12.10. Acts of Holders; Record Dates..........................................................46
Section 12.11. Effect of Headings and Table of Contents...............................................48
Section 12.12. Benefits of Indenture..................................................................49
Section 12.13. Language...............................................................................49
(iv)
INDENTURE, dated as of September 14, 1999, among
Louisiana-Pacific Acquisition Inc. a corporation duly incorporated under Part 1A
of the COMPANIES ACT (Quebec) (the "Company"), Louisiana-Pacific Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Guarantor") and Laurentian Trust of Canada Inc., a trust Company duly
organized and existing under the laws of Quebec (herein called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
A. The Company and the Guarantor have duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Company's
installment notes, to be issued in accordance with the terms of this Indenture.
B. The Company and the Trustee have agreed that the Company shall issue
and deliver, and the Trustee shall authenticate, notes denominated "Senior
Installment Notes" (the "Securities") pursuant to the terms of this Indenture
and substantially in the form set forth below, in each case with such
appropriate insertions, omissions, substitutions, and other variations as are
required or permitted by this Indenture, and with such letters, numbers, or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
[FORM OF FACE OF SECURITY]
LOUISIANA-PACIFIC ACQUISITION INC.
Senior Installment Notes
No. __________ C$_______________
Louisiana-Pacific Acquisition Inc., a corporation duly
incorporated under Part 1A of the COMPANIES ACT (Quebec) (hereinafter called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of
C$_____________________________________, and to pay interest on the currently
outstanding principal amount from ________________ or, if later, from the most
recent Interest Payment Date to which interest on the debt evidenced hereby has
been paid or duly provided for, on September 30, December 31, March 31, and June
30 in each year, commencing December 31, 1999, at a rate per annum determined by
the Company to be equal to the Canadian LIBOR Rate plus the Margin (as such
terms are defined on the reverse side hereof), until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which will be the fifteenth calendar day (whether
or not a Business Day) next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof will be given to Holders of
the Securities not less than 10 calendar days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
The principal will be paid in equal installments (each such payment, a
"Principal Installment") on [____________, 2000, ____________, 2001,
____________, 2002 and ____________, 2003] (each such date, a "Maturity Date").
To receive payment of a Principal Installment, the Holder of this Security must
surrender the same at the office or agency of the Company referred to below,
whereupon the Company will execute, and the Trustee will authenticate and
deliver to such Holder, without charge, a new Security or Securities of like
tenor, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpaid principal of
this Security. From and after the applicable Maturity Date, no interest will
accrue on the Principal Installment due on such Maturity Date. Payment of each
Principal Installment of this Security will be made on the applicable Maturity
Date or, if later, promptly after this Security is surrendered for such purpose
as described above.
Payment of the Principal Installments and interest on this Security
will be made at the office or agency of the Company maintained for the purpose
in Montreal, Quebec, in such coin or currency of Canada as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company payment of any Principal Installment
or interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH
ON THE REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any
purpose until the certificate of authentication on this Security has been signed
manually by the Trustee under the Indenture referred to on the reverse side
hereof.
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In Witness Whereof, this instrument has been duly executed in
accordance with the Indenture.
Louisiana-Pacific Acquisition Inc.
Dated: By:
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Name:
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Title:
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Attest:
By:
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Name:
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Title:
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[Form of Reverse of Security]
Louisiana-Pacific Acquisition Inc.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities") issued under an Indenture, dated
as of September 14, 1999 (herein called the "Indenture"), among the Company, the
Guarantor and Laurentian Trust of Canada Inc., as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties, and
immunities thereunder of the Company, the Guarantor, the Trustee, and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Security or (b) certain
restrictive covenants and Events of Default with respect to this Security, in
each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Guarantor and the rights of the Holders of
the Securities to be effected at any time by the Company, the Guarantor, and the
Trustee with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
will be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security will not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default and offered
the Trustee reasonable indemnity, and the Trustee shall not
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have received from the Holders of a majority in principal amount of the
Securities at the time Outstanding a direction inconsistent with such request
and shall have failed to institute such proceeding for 60 calendar days after
receipt of such notice, request, and offer of indemnity. The foregoing will
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture will alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and interest on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons. Prior to the first Maturity Date, the Securities will be issuable only
in denominations of C$1,000 and integral multiples thereof. From and after the
first, second and third Maturity Dates, the Securities will be issuable only in
denominations of C$750, C$500 and C$250, respectively, and integral multiples
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities are exchangeable for a like aggregate principal amount
of the Securities of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor, the Trustee, and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security shall be
overdue, and none of the Company, the Guarantor, the Trustee, or any such agent
will be affected by notice to the contrary.
All terms used in this Security that are defined in the
Indenture will have the respective meanings assigned to them in the Indenture.
The term "Canadian LIBOR Rate" means, in respect of each Interest Period, the
London Interbank market rate of interest for deposits in Canadian dollars in
amounts comparable to that of the aggregate principal amount of the Securities
for a 90-day period which appears on Telerate Page 3740 of the Dow Jones
Telerate Service (or such other page as may be designated as a replacement page
for such
5
deposits) as of 11:00 a.m. (London time) two business days in London before the
first day of such Interest Period; provided that if such rate is not available
as of such time, then the rate for such Interest Period shall mean a rate
determined by the Company, acting reasonably, that most closely approximates
such rate. The term "Margin" means, in respect of each Interest Period, a rate
per annum equal to the rate set forth below opposite the applicable rating
assigned to the Guarantor's long-term debt by Moody's Investors Services Inc. or
Standard & Poor's Corporation as in effect two Business Days before the first
day of such Interest Period; provided that (i) if ratings assigned by both
Moody's Investors Services Inc. and Standard & Poor's Corporation are in effect
on the relevant date and would result in two different Margins, the lower of
such Margins shall be used, (ii) the Margin shall in no event be less than 0.25%
or greater than 1.25%, and (iii) if no rating assigned by Moody's Investors
Services Inc. or Standard & Poor's Corporation is in effect on the relevant
date, the Margin shall be 0.75%.
MOODY'S S & P MARGIN
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A2 A 0.25%
A3 A- 0.50%
Baa1 BBB+ 0.75%
Baa2 BBB 1.00%
Baa3 BBB- 1.25%
GUARANTEE
Louisiana-Pacific Corporation, a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Guarantor," which term includes any successor or additional Guarantor under the
Indenture) has unconditionally guaranteed, to the extent permitted by law, that
(a) the principal of and interest on this Security will be promptly paid in full
when due, whether at maturity, by acceleration, or otherwise, and interest on
the overdue principal of and interest on this Security, if any, will be promptly
paid in full in accordance with the terms hereof and as set forth in the
Indenture; and (b) in case of any extension of time of payment or renewal of
this Security, that the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration, or otherwise.
No stockholder, officer, director, employee, or
incorporator, past, present or future, of the Guarantor, as such, shall have any
personal liability under this Guarantee by reason of his or its status as such
stockholder, officer, director, employee, or incorporator.
This Guarantee shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Holder and the Trustee and, in the event of any transfer or
assignment of rights by the Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
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This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on this Security has been signed
manually by the Trustee under the Indenture.
Louisiana-Pacific Corporation
By:
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Name:
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Title:
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C. The Trustee's certificate of authentication will be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Laurentian Trust of Canada Inc., as Trustee
Dated: By:
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Authorized Signatory
D. All acts and things necessary to make the Securities and
the Guarantee, when the Securities have been executed by the Company, the
notation of the Guarantee on the Securities has been endorsed by the Guarantor,
and the Securities have been authenticated by the Trustee and delivered as
provided in this Indenture, the valid, binding, and legal obligations of the
Company and the Guarantor, respectively, and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed, and the execution and delivery by the Company and the Guarantor of
this Indenture and the issue hereunder of the Securities have in all respects
been duly authorized; and the Company and the Guarantor, in the exercise of
legal right and power in them vested, are executing and delivering this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued, and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of the respective Holders from time to time of the Securities as
follows:
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ARTICLE I. DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED
(a) The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context of this Indenture otherwise
requires) for all purposes of this Indenture have the respective meanings
specified in this Section 1.01.
ACT:
The term "Act," when used with respect to any Holder, has
the meaning set forth in Section 12.10.
AFFILIATE:
The term "Affiliate" means, with respect to a particular
Person, any Person that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, control of a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means any Person authorized
by the Trustee pursuant to Section 7.12 to act on behalf of the Trustee to
authenticate Securities.
BOARD OF DIRECTORS:
The term "Board of Directors" means the Board of Directors
of the Company or of the Guarantor, as applicable, or a duly authorized
committee of such Board.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday, and Friday which is not a day on which banking institutions
in Montreal, Quebec are authorized or required by law or executive order to
close and the Federal Reserve Bank's FedWire Service is operating.
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CANADIAN LIBOR RATE:
The term "Canadian LIBOR Rate" means, in respect of each
Interest Period, the London Interbank market rate of interest for deposits in
Canadian dollars in amounts comparable to that of the aggregate principal amount
of the Securities for a 90-day period which appears on Telerate Page 3740 of the
Dow Jones Telerate Service (or such other page as may be designated as a
replacement page for such deposits) as of 11:00 a.m. (London time) two business
days in London before the first day of such Interest Period; provided that if
such rate is not available as of such time, then the rate for such Interest
Period shall mean a rate determined by the Company, acting reasonably, that most
closely approximates such rate.
COMMON SHARES:
The term "Common Shares" means the common shares of the
Company.
COMPANY:
The term "Company" means Louisiana-Pacific Acquisition Inc.,
a corporation incorporated under Part 1A of the COMPANIES ACT (Quebec), until a
successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" will mean such successor Person.
COMPANY REQUEST OR COMPANY ORDER:
The term "Company Request" or "Company Order" means a
written request or order, respectively, signed in the name of the Company by the
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary, or any Assistant Secretary of the Company, and delivered to the
Trustee.
CORPORATE TRUST OFFICE:
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of initial execution of this Indenture is 425 de
Maisonneuve West, 1st Floor, Department 772, Montreal, Quebec H3A 3G5.
COVENANT DEFEASANCE:
The term "Covenant Defeasance" has the meaning set forth in
Section 3.02.
DEFAULT:
The term "Default" means any event which, with notice or
passage of time or both, would constitute an Event of Default.
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DEFAULTED INTEREST:
The term "Defaulted Interest" has the meaning set forth in
Section 2.09.
DEFEASANCE:
The term "Defeasance" has the meaning set forth in Section
3.01.
EVENT OF DEFAULT:
The term "Event of Default" has the meaning set forth in
Section 6.01(a).
GUARANTEE:
The term "Guarantee" shall mean the guarantee of Guarantor
pursuant to Article XI hereof. When used as a verb, "Guarantee" shall have a
corresponding meaning.
GUARANTOR:
The term "Guarantor" means Louisiana-Pacific Corporation, a
Delaware corporation, until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Guarantor" will
mean such successor Person.
HOLDER:
The term "Holder" means a person in whose name a particular
Security is registered in the Security Register.
INDENTURE:
The term "Indenture" means this Indenture, as this Indenture
may be amended, supplemented, or otherwise modified from time to time.
INTEREST:
The term "Interest" means the amount of all interest
accruing on such Security, including any default interest and any interest that
would have accrued after any Event of Default but for the occurrence of such
Event of Default, whether or not a claim for such interest would be otherwise
allowable under applicable law.
INTEREST PAYMENT DATE:
The term "Interest Payment Date," when used with respect to
any Security, means the Stated Maturity of an installment of interest on such
Security.
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INTEREST PERIOD:
The term "Interest Period" means initially, the period
commencing on September 9, 1999 and ending on December 31, 1999, and thereafter
each calendar quarter (or shorter period in the event of repayment of the
Securities); provided that interest shall accrue for the first day of each
Interest Period and each day thereafter up to but (provided that interest is
timely paid) excluding the last day of such Interest Period.
MARGIN:
The term "Margin" means in respect of each Interest Period,
a rate per annum equal to the rate set forth below opposite the applicable
rating assigned to the Guarantor's long-term debt by Moody's Investors Services
Inc. or Standard & Poor's Corporation as in effect two Business Days before the
first day of such Interest Period; provided that (i) if ratings assigned by both
Moody's Investors Services Inc. and Standard & Poor's Corporation are in effect
on the relevant date and would result in two different Margins, the lower of
such Margins shall be used, (ii) the Margin shall in no event be less than 0.25%
or greater than 1.25%, and (iii) if no rating assigned by Moody's Investors
Services Inc. or Standard & Poor's Corporation is in effect on the relevant
date, the Margin shall be 0.75%.
MOODY'S S & P MARGIN
---------------------- ---------------------- --------------
A2 A 0.25%
A3 A- 0.50%
Baa1 BBB+ 0.75%
Baa2 BBB 1.00%
Baa3 BBB- 1.25%
MATERIAL ADVERSE EFFECT:
The term "Material Adverse Effect" means a material adverse
effect on the business, assets, financial condition, or results of operations of
the Company (taken together with its Subsidiaries as a whole).
MATURITY:
The term "Maturity," when used with respect to any Security,
means the date on which the principal of that Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, or otherwise.
MATURITY DATE:
The term "Maturity Date" has the meaning set forth in
Section 2.01.
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NOTICE OF DEFAULT:
The term "Notice of Default" means a written notice of the
kind set forth in Section 6.01(a)(iv).
OFFICER'S CERTIFICATE:
The term "Officer's Certificate" means a certificate
executed on behalf of the Company or the Guarantor, as appropriate, by a
Responsible Officer, and delivered to the Trustee.
OPINION OF COUNSEL:
The term "Opinion of Counsel" means an opinion in writing
signed by legal counsel, who, subject to any express provisions hereof, may be
an employee of or counsel for the Company, the Guarantor or any Subsidiary of
the Company or the Guarantor, reasonably acceptable to the Trustee.
OUTSTANDING:
The term "Outstanding" means, when used with reference to
Securities as of a particular time, all Securities theretofore issued by the
Company and authenticated and delivered by the Trustee under this Indenture,
except: (a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation, (b) Securities for the payment or redemption of which
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company is acting as its own Paying Agent) for
the Holders of such Securities, and (c) Securities in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; PROVIDED, HOWEVER, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent, or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor will be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee will be protected in relying upon any such request, demand,
authorization, direction, notice, consent, or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned will be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
12
PERSON:
The term "Person" means any individual, partnership,
corporation, limited liability company, joint stock company, business trust,
trust, unincorporated association, joint venture, or other entity, or government
or political subdivision or agency thereof.
PREDECESSOR SECURITY:
The term "Predecessor Security," when used with respect to
any particular Security, means every previous Security evidencing all or a
portion of the same debt as that evidenced by such Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost, or
stolen Security will be deemed to evidence the same debt as the mutilated,
destroyed, lost, or stolen Security.
PRINCIPAL INSTALLMENT:
The term "Principal Installment" has the meaning set forth
in Section 2.01.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities means the fifteenth calendar day
(whether or not a Business Day) next preceding such Interest Payment Date.
RESPONSIBLE OFFICER:
The term "Responsible Officer," when used (a) with respect
to the Company or the Guarantor, means the Chairman or any Vice Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, or any
Assistant Secretary of the Company or the Guarantor, as applicable, and (b) with
respect to the Trustee, means any officer of the Trustee assigned by the Trustee
to administer corporate trust matters and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
SECURITIES:
The term "Securities" has the meaning set forth in the
second recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
SECURITY REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have
the respective meanings set forth in Section 2.05.
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SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.09.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any
Security, means the date specified in such Security as the fixed date on which
the principal of such Security or any installment of interest thereon is due and
payable.
SUBSIDIARY:
The term "Subsidiary" means, with respect to any Person, any
corporation, partnership, or other business entity of which, in the case of a
corporation, more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership or other
legal entity, more than 50% of the ordinary equity capital interests, is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries, or by one or more of such Person's
other Subsidiaries.
TRUSTEE:
The term "Trustee" means the Person named as the "Trustee"
in the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" will mean or include each Person who is then a Trustee
hereunder.
VICE PRESIDENT:
The term "Vice President," when used with respect to the
Company, the Guarantor, or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
(b) The words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture as originally executed. The words
"herein", "hereof," and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section, or other
subdivision. Certain terms used principally in Articles III, IV and VII are
defined in those Articles. Terms in the singular include the plural and terms in
the plural include the singular.
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ARTICLE II. THE SECURITIES
SECTION 2.01. DESIGNATION OF SECURITIES; PRINCIPAL AMOUNT; MATURITY
(a) The Securities are designated Senior Installment Notes.
The Securities will be unsecured obligations of the Company and will rank PARI
PASSU in right of payment with all other unsecured and unsubordinated
indebtedness of the Company.
(b) The Company will issue the Securities in conjunction
with its acquisition of all of the issued and outstanding Class A Multiple
Voting Shares and Class B Subordinate Voting Shares (collectively, the "Shares")
of Le Groupe Forex Inc. ("Forex") pursuant to the Company's offer to purchase
the Shares and any subsequent acquisition transaction that the Company may elect
to pursue (collectively, the "Acquisition"). Pursuant to the Acquisition, the
shareholders of Forex will be entitled to elect to receive (i) cash, or (ii) a
combination of cash and Securities. The Securities will be issued in an
aggregate principal amount equal to the aggregate amount of consideration
payable to holders of Shares in the form of Securities in connection with or by
reason of the Acquisition.
(c) The principal of the Securities will be paid in equal
installments (each a "Principal Installment") on September 30, 2000, September
30, 2001, September 30, 2002, and September 30, 2003 (each such date a "Maturity
Date"); provided, in the case of any particular Security, that such date is
later than the date of issuance of such Security. The principal of any Security
issued on or after a particular Maturity Date will be paid in equal installments
on the following Maturity Dates (or, in the case of any Security issued on or
after September 30, 2002, will be paid in full on September 30, 2003). To
receive payment of a Principal Installment, the Holder of a Security must
surrender the same at the office or agency of the Company designated for such
purpose pursuant to Section 4.02, whereupon the Company will execute, and the
Trustee will authenticate and deliver to such Holder, without charge, a new
Security or Securities of like tenor, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unpaid principal of the Security so surrendered. From and after
the applicable Maturity Date, no interest will accrue on the Principal
Installment due on such Maturity Date. Payment of each Principal Installment of
a Security will be made on the applicable Maturity Date or, if later, promptly
after a Security is surrendered for such purpose as described above.
(d) The Company shall issue and deliver to the Trustee, and
the Trustee shall authenticate, Securities substantially in the form set forth
above, in each case with such appropriate insertions, omissions, substitutions,
and other variations as are required or permitted by this Indenture, and with
such letters, numbers, or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
(a) The Securities will be in substantially the form set
forth in or otherwise contemplated by the recitals to this Indenture.
15
(b) The definitive Securities will be printed, lithographed,
or engraved on steel engraved borders or may be produced in any other manner as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the form set forth in the recitals to this Indenture.
SECTION 2.03. DATE AND DENOMINATIONS
Each Security will be issuable only in registered form
without coupons and will be dated the date of its authentication. Prior to the
first Maturity Date, the Securities will be issuable only in denominations of
C$1,000 and integral multiples thereof. From and after the first, second and
third Maturity Dates, the Securities will be issuable only in denominations of
C$750, C$500 and C$250, respectively, and integral multiples thereof.
SECTION 2.04. EXECUTION, AUTHENTICATION AND DELIVERY OF SECURITIES
(a) The Securities will be executed on behalf of the Company
by the President, or any Vice President of the Company and attested by the
Treasurer, the Secretary, any Assistant Treasurer, or any Assistant Secretary of
the Company. The signature of any of these officers on the Securities may be
manual or facsimile.
(b) Only such Securities bearing the Trustee's certificate
of authentication, signed manually by the Trustee, will be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
execution of the certificate of authentication by the Trustee upon any
Securities executed by the Company will be conclusive evidence that the
Securities so authenticated have been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.08, for all purposes of this Indenture such Security will
be deemed never to have been authenticated and delivered hereunder and will
never be entitled to the benefits of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee will
authenticate and deliver such Securities in accordance with such Company Order.
16
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE
(a) The Company will cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 4.02 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company will provide for
the registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any
Security at the office or agency designated pursuant to Section 4.02, the
Company will execute, and the Trustee will authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount and tenor.
(c) At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company will execute, and the Trustee will authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration
of transfer or exchange will (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument or instruments of
transfer, in form reasonably satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing. No service charge will be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.06 or 8.05 not involving any transfer.
(e) All Securities issued upon any registration of transfer
or exchange of Securities will be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
SECTION 2.06. TEMPORARY SECURITIES
Pending the preparation of definitive Securities, the
Company may execute and register, and upon Company Order the Trustee will
authenticate and deliver, temporary Securities (printed, lithographed, or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers of the Company executing such Securities as evidenced by their
execution of such Securities; PROVIDED, HOWEVER, that the Company will use
reasonable efforts to have definitive Securities available at the times
17
of any issuance of Securities under this Indenture. Every temporary Security
will be executed and registered by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. The Company will execute and register
and furnish definitive Securities as soon as practicable and thereupon any or
all temporary Securities may be surrendered in exchange therefor at the office
or agency of the Company designated for such purpose pursuant to Section 4.02,
and the Trustee will authenticate and deliver in exchange for such temporary
Securities one or more definitive Securities of any authorized denominations,
and of a like aggregate principal amount and tenor. Such exchange will be made
by the Company at its own expense and without any charge to the Holder therefor.
Until so exchanged, the temporary Securities authenticated and delivered
hereunder will be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
SECTION 2.07. MUTILATED, DESTROYED, LOST, AND STOLEN SECURITIES
(a) If any mutilated Security is surrendered to the Trustee,
the Company will execute and the Trustee will authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss, or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company will execute and the Trustee will
authenticate and deliver, in lieu of any such destroyed, lost, or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security issued pursuant to this Section 2.07
in exchange for any mutilated Security or in lieu of any destroyed, lost, or
stolen Security will constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost, or stolen Security
shall be at any time enforceable by anyone, and will be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and
will preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost, or stolen
Securities.
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SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES
All Securities surrendered for payment, redemption,
registration of transfer or exchange will, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and will be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered will be promptly canceled by the Trustee. No
Securities will be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section 2.08, except as expressly permitted by this
Indenture. The Trustee shall destroy all canceled Securities held by the Trustee
and shall send a certificate of such destruction to the Company.
SECTION 2.09. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
(a) The Securities shall bear interest during each Interest
Period at a rate per annum determined by the Company to be equal to the Canadian
LIBOR Rate plus the Margin, which determination will be final and binding. The
Company will notify the Trustee of the interest rate with respect to each
Interest Period no later than the first Business Day of such Interest Period.
The Securities will bear interest from September 9, 1999 (except that Securities
issued pursuant to Sections 2.01(c), 2.05 or 2.07 of this Indenture will bear
interest from the most recent Interest Payment Date to which interest on the
debt evidenced thereby has been paid or duly provided for and any Securities
issued upon the conversion of any 8% convertible subordinated debentures issued
by Forex under the Agency Indenture made as of March 12, 1997 between Forex,
Levesque Beaubien Geoffrion, Inc. and Laurentian Trust of Canada Inc. will bear
interest from the date of such conversion) until the principal thereof is paid
or made available for payment. Such interest shall be payable quarterly on
September 30, December 31, March 31 and June 30 of each year, commencing
December 31, 1999.
(b) The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the fifteenth calendar day (whether or not a Business Day) next preceding such
Interest Payment Date.
(c) Any interest on any Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") will forthwith cease to be payable to the Holder on
the relevant regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company together with interest thereon (to
the extent permitted by law) at the rate of interest applicable to such
Security, at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest (and interest thereon, if any) to the Persons in
whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on a Special
19
Record Date for the payment of such Defaulted Interest, which will be
fixed in the following manner. The Company will notify the Trustee in
writing of the amount of Defaulted Interest (and interest thereon, if
any) proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company will deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest (and interest thereon, if any) or
will make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to such
Defaulted Interest (and interest thereon, if any) as in this clause (i)
provided. Thereupon the Trustee will fix a Special Record Date for the
payment of such Defaulted Interest (and interest thereon, if any) which
will be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee will promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
will cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities at his address as it appears in
the Security Register, not less than 10 calendar days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest (and interest thereon, if any) and the Special Record Date
therefor having been so mailed, such Defaulted Interest will be paid to
the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and will no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest (and interest thereon, if any) on the Securities in any other
lawful manner if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause (ii), such manner of
payment shall be deemed practicable by the Trustee.
(d) Subject to the foregoing provisions of this Section
2.09, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security will carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(e) Payment of the Principal Installments and interest on
the Securities shall be made at the office or agency of the Company maintained
for the purpose in Montreal, Quebec, in such coin or currency of Canada as at
the time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Company payment of any Principal
Installment or interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security Register.
SECTION 2.10. PERSONS DEEMED OWNERS
Prior to due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee, and any agent of the Company,
the Guarantor, or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the
20
purpose of receiving payment of principal of and (subject to Section 2.09) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall be overdue, and none of the Company, the Guarantor, the
Trustee or any agent of the Company, the Guarantor or the Trustee will be
affected by notice to the contrary.
SECTION 2.11. COMPUTATION OF INTEREST
Interest on the Securities will be computed on the basis of
a 360-day year consisting of twelve 30-day months.
ARTICLE III. DEFEASANCE AND COVENANT DEFEASANCE
SECTION 3.01. DEFEASANCE AND DISCHARGE
The Company and the Guarantor will be deemed to have been
discharged from their respective obligations with respect to the Outstanding
Securities as provided in this Section 3.01 on and after the date the conditions
set forth in Section 3.03 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company will be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding Securities
and the Company and the Guarantor will be deemed to have satisfied all of their
respective other obligations under the Securities and this Indenture (and the
Trustee, at the expense of the Company, will execute proper instruments
acknowledging the same), subject to the following which will survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of the
Securities to receive, solely from the trust fund described in Section 3.03 and
as more fully set forth in Section 3.03, payments in respect of the principal of
and interest on such Securities when payments are due, (b) the Company's
obligations with respect to the Securities under Sections 2.05, 2.06, 2.07,
4.02, 4.03, and 8.06, (c) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder, and (d) this Article III.
SECTION 3.02. COVENANT DEFEASANCE
The Company will be released from its obligations under
Sections 4.04 through 4.07, inclusive, Section 9.01, and the occurrence of any
event specified in Section 6.01(a)(iii) (with respect to any of Sections 4.04
through 4.07, inclusive and Section 9.01) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities as
provided in this Section 3.02 on and after the date the conditions set forth in
Section 3.03 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply with
and will have no liability in respect of any term, condition, or limitation set
forth in any such specified Section (to the extent specified above in the case
of Section 6.01(a)(iii)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or provision or by reason of any
reference in any such Section or provision to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities will
be unaffected thereby.
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SECTION 3.03. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following will be the conditions to application of
either Section 3.01 or Section 3.02 to the Outstanding Securities:
(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee as trust funds in trust for the
benefit of the Holders of the Outstanding Securities money in an amount
sufficient to pay and discharge, and which will be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and interest on the Securities on the respective
Stated Maturities. The determination of the sufficiency of the amount
of money so deposited shall be determined with reference to the rate of
interest borne by the Securities at the time of such deposit.
(b) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 6.01(a)(iv)
and (v), at any time on or prior to the 90th calendar day after the
date of such deposit (it being understood that this condition will not
be deemed satisfied until after such 90th calendar day).
(c) Such Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel, each
stating that all conditions precedent with respect to such Defeasance
or Covenant Defeasance have been complied with.
SECTION 3.04. DEPOSITED MONEY TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS
(a) Subject to the provisions of Section 4.03(e), all money
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section 3.04 and Section 3.05, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 3.03 in respect
of the Securities will be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
Securities, of all sums due and to become due thereon in respect of principal
and interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
(b) Notwithstanding anything in this Article III to the
contrary, (i) the Trustee will from time to time upon request deliver or pay to
the Company any money held by the Trustee as provided in Section 3.03 with
respect to the Securities that is in excess of the amount of money that would
then be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance with respect to the Securities and (ii) the Company will from time to
time
22
upon request deposit or cause to be deposited with the Trustee as trust funds in
trust for the benefit of the Holders of the Outstanding Securities such
additional amounts of money as may be necessary to cause the amount of money
held by the Trustee as provided in Section 3.03 with respect to the Securities
to be at least equal to the amount of money that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities.
SECTION 3.05. REINSTATEMENT
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article III with respect to the Securities by
reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, then the
Company's and the Guarantor's obligations under this Indenture and the
Securities will be revived and reinstated as though no deposit had occurred
pursuant to this Article III with respect to the Securities until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 3.04 with respect to the Securities in accordance with this
Article III; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or interest on the Securities following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of the
Securities to receive such payment from the money so held in trust.
ARTICLE IV. PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST ON SECURITIES
The Company, for the benefit of the Securities, will duly
and punctually pay the principal of and interest on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY
(a) The Company will maintain in Montreal, Quebec an office
or agency where the Securities may be presented or surrendered for payment,
where the Securities may be surrendered for registration of transfer or
exchange, 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 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, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices,
and demands.
(b) 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 will in
any manner relieve the Company of its obligation to maintain an
23
office or agency in Montreal, Quebec for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 4.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
(a) If the Company shall at any time act as its own Paying
Agent with respect to the Securities, it will, on or before each due date of the
principal of or interest on any of the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying
Agents for the Securities, it will, prior to each due date of the principal of
or interest on any Securities, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held in trust by such Paying Agent for payment
in respect of the Securities, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for the
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 4.03, that such Paying Agent will, during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, and upon
the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent for payment in respect of the Securities.
(d) The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent will be released from all further liability with
respect to such money.
(e) Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
or interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable will be paid to the Company
upon a Company Request (or, if then held by the Company, will be discharged from
such trust); and the Holder of such Security will thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease.
24
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments,
and governmental charges levied or imposed upon the Company or any Subsidiary of
the Company or upon the income, profits, or property of the Company or any
Subsidiary of the Company, and (b) all lawful claims for labor, materials, and
supplies, in each case which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary of the Company and might have a
Material Adverse Effect; PROVIDED, HOWEVER, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge, or claim the amount, applicability, or validity of which is
being contested in good faith by appropriate proceedings.
SECTION 4.05. MAINTENANCE OF PROPERTIES
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair, and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments, and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section 4.05 will prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary of the Company and will not
result in a Material Adverse Effect.
SECTION 4.06. EXISTENCE
Subject to Article IX, the Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory),
and franchises; PROVIDED, HOWEVER, that no Subsidiary of the Company will be
required to preserve its existence, and neither the Company nor any Subsidiary
of the Company will be required to preserve any such right or franchise, if the
Board of Directors determines that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof will not result in a Material Adverse Effect.
SECTION 4.07. COMPLIANCE WITH LAWS
The Company will, and will cause each of its Subsidiaries
to, comply with all applicable federal, state, local, or foreign laws, rules,
regulations, or ordinances, including without limitation such laws, rules,
regulations, or ordinances relating to pension, environmental, employee, and tax
matters, in each case to the extent that the failure so to comply would have a
Material Adverse Effect.
25
SECTION 4.08. STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 calendar
days after the end of each fiscal year of the Company ending after the date
hereof, an Officer's Certificate of the Company stating whether or not to the
knowledge of such person after due inquiry the Company is in default in the
performance and observance of any of the terms, provisions, and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company is in default, specifying all such
defaults and the nature and status thereof of which such person may have such
knowledge.
SECTION 4.09. WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply
with any term, provision, or condition set forth in Sections 4.04 through 4.07,
inclusive, with respect to the Securities if the Holders of a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision, or condition, but no such waiver will extend to or affect
such term, provision, or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision, or
condition will remain in full force and effect.
ARTICLE V. SECURITIES HOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not more than 15 calendar days after the applicable
Regular Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of the Securities as of such Regular
Record Date and (b) at such other times as the Trustee may request in writing,
within 30 calendar days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 calendar days
prior to the time such list is furnished; EXCLUDING from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
SECTION 5.02. PRESERVATION OF INFORMATION
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 5.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
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ARTICLE VI. DEFAULT
SECTION 6.01. EVENT OF DEFAULT
(a) "Event of Default," wherever used herein with respect to
the Securities, means any one of the following events (whatever the reason for
such Event of Default and whether it may be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree, or order of
any court or any order, rule, or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on the
Securities when it becomes due and payable, and continuance of such
default for a period of 30 calendar days;
(ii) default in the payment of the principal of the
Securities when it becomes due and payable;
(iii) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty, a default in the performance or breach of which
is elsewhere in this Section 6.01 specifically dealt with), and
continuance of such default or breach for a period of 60 calendar days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(iv) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable federal or
provincial bankruptcy, insolvency, reorganization, or other similar law
or (B) a decree or order adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of the Company
under any applicable federal or provincial law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator, or
other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive calendar days; or
(v) the commencement by the Company of a voluntary
case or proceeding under any applicable federal or provincial
bankruptcy, insolvency, reorganization, or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable federal or provincial bankruptcy, insolvency,
reorganization, or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or
relief with respect
27
to the Company under any applicable federal or provincial bankruptcy,
insolvency, reorganization, or other similar law, or the consent by it
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of the Company or of any
substantial part of its property pursuant to any such law, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
(b) If an Event of Default (other than an Event of Default
arising under Section 6.01(a)(iv) or (v)) with respect to Securities Outstanding
occurs and is continuing, then in every case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities may declare the
principal amount of all of the Securities to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) will
become immediately due and payable. If an Event of Default under Section
6.01(a)(iv) or (v) occurs, then the principal of, and accrued interest on, the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
(c) At any time after such a declaration of acceleration
with respect to the Securities has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article VI provided, the Holders of a majority in principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on the Securities, (B) the principal of any Securities which has become
due otherwise than by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in the Securities, (C) to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in the Securities, and (D) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel and (ii)
all Events of Default with respect to the Securities, other than the non-payment
of the principal of the Securities which has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
6.01(d). No such rescission will affect any subsequent default or impair any
right consequent thereon.
(d) The Holders of a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default (i) in the
payment of the principal of or interest on the Securities or (ii) in respect of
a covenant or provision hereof which under Article VIII cannot be modified or
amended without the consent of the Holder of each Outstanding Security. Upon any
such waiver, such default will cease to exist, and any Event of Default arising
therefrom will be deemed to have been cured, for every purpose of this
Indenture, but no such waiver will extend to any subsequent or other default or
impair any right consequent thereon.
28
SECTION 6.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT
DUE ON SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR
PRINCIPAL; SUITS FOR ENFORCEMENT BY TRUSTEE
(a) The Company covenants that if (i) default is made in the
payment of any interest on the Securities when such interest becomes due and
payable and such default continues for a period of 30 calendar days or (ii)
default is made in the payment of the principal of the Securities when it
becomes due and payable, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of the Securities, the whole amount then due
and payable on the Securities for principal and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and on any overdue interest, at the rate or rates prescribed therefor
in the Securities, and, in addition thereto, such further amount as will be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements, and advances of the Trustee
and its agents and counsel. If the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
and collect in the manner provided by law out of the property of the Company,
wherever situated, the moneys adjudged or decreed to be payable.
(b) If an Event of Default with respect to the Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property, or its
creditors, the Trustee will be entitled and empowered, by intervention in such
proceeding or otherwise, to seek to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee will be authorized to
collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator, or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee consents to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements, and advances of the
Trustee and its agents and counsel, and any other amounts due the Trustee under
Section 7.06.
(d) No provision of this Indenture will 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;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
29
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
(e) All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee will be
brought in its own name as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation,
expenses, disbursements, and advances of the Trustee and its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE
Any money collected by the Trustee pursuant to this Article
VI will be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and unpaid
for principal of and interest on the Securities
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal and interest, respectively;
and
THIRD: To the Company, its successors or assigns, or to
such other Person that may be lawfully entitled to
receive the same.
SECTION 6.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES
No Holder of any Security will have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default, (b) the Holders of not less than 25% in principal
amount of the Outstanding Securities have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder, (c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses, and liabilities to be incurred
in compliance with such request, (d) the Trustee for 60 calendar days after its
receipt of such notice, request, and offer of indemnity has failed to institute
any such proceeding, and (e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities, it being understood
and intended that no one or more of such Holders will have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb, or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to
30
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
SECTION 6.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION IN
EXERCISE OF RIGHTS NOT A WAIVER OF EVENT OF DEFAULT
(a) Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost, or stolen Securities in
the last paragraph of Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy will, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
(b) No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of
Default will impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article VI or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF
OUTSTANDING SECURITIES TO DIRECT TRUSTEE
The Holders of a majority in principal amount of the
Outstanding Securities will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities, PROVIDED that (a) such direction will not be in conflict with any
rule of law or with this Indenture and (b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 6.07. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered, or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
by applicable law; PROVIDED, HOWEVER, this Section 6.07 will not be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or by the Trustee.
31
SECTION 6.08. NOTICE OF DEFAULTS
If a Default occurs hereunder with respect to the
Securities, the Trustee will give the Holders of the Securities notice of such
Default within 90 days after the occurrence thereof in the manner provided in
Section 12.03; PROVIDED, HOWEVER, that in the case of any Default of the
character specified in Section 6.01(a)(iii) with respect to the Securities no
such notice to Holders will be given until at least 30 calendar days after the
occurrence thereof. The Company will give the Trustee notice of any uncured
Event of Default within 10 days after any Responsible Officer of the Company
becomes aware of or receives actual notice of such Event of Default.
SECTION 6.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provision in this Indenture, the
Holder of any Security will have the right, which is absolute and unconditional,
to receive payment of the principal of and (subject to Section 2.09) interest on
such Security on the respective Stated Maturities expressed in such Security and
to institute suit for the enforcement of any such payment, and such rights may
not be impaired without the consent of such Holder.
SECTION 6.10. RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee, and
the Holders will be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders will continue as though no such proceeding had been instituted.
SECTION 6.11. TRUSTEE MAY FILE PROOFS OF CLAIMS
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 (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. 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
32
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
ARTICLE VII. CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Trustee will be as
provided in this Indenture. Notwithstanding the foregoing, no provision of this
Indenture will 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. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee will be
subject to the provisions of this Section 7.01.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 7.01: (a) the Trustee
may conclusively rely and will be protected in acting or refraining from acting
upon, whether in its original or facsimile form, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties; (b) any request or direction of the Company
mentioned herein will be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board will be sufficiently evidenced by a Board
Resolution; (c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering, or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate; (d) the Trustee may consult with counsel of
its selection and the advice of such counsel or any Opinion of Counsel will 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 will be under no obligation to exercise any of the rights or powers
vested in it by this Indenture, at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses, and
liabilities which might be incurred by it in compliance with such request or
direction; (f) the Trustee will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it will be entitled to examine the
books, records, and premises of the Company, personally or by agent or attorney,
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; (g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
will not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
33
(h) the Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 7.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent will not be accountable for the use or application
by the Company of the Securities or the proceeds thereof.
SECTION 7.04. MAY HOLD SECURITIES
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Section 7.07, may otherwise deal with the Company and the Guarantor with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar, or such other agent.
SECTION 7.05. MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required herein or by law. The
Trustee will be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 7.06. COMPENSATION AND REIMBURSEMENT
The Company and the Guarantor, jointly and severally, agree
(a) to pay to the Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree from time to time (which
compensation will not be limited to any provision of law in regard to the
compensation of a trustee of an express trust); (b) except as otherwise
expressly provided herein, reimburse the Trustee upon its request for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of agents and counsel), except
any such expense, disbursement, or advance as may be attributable to its
negligence or bad faith; and (c) indemnify each of the Trustee and any
predecessor Trustee for, and hold the Trustee harmless against, any and all
loss, liability, claim, or expense incurred without negligence or bad faith on
its part arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(a)(iv) or Section
6.01(a)(v), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any applicable Federal or provincial
bankruptcy, insolvency or other similar law.
SECTION 7.07. DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or acquires a material conflict of
interest with respect to its duties hereunder, the Trustee will, within 90 days
of ascertaining that it has such a material conflict of interest, either
eliminate such interest or resign in the manner provided by this Indenture.
SECTION 7.08. CORPORATE TRUSTEE REQUIRED ELIGIBILITY
There will at all times be one or more Trustees hereunder
with respect to the Securities, at least one of which will be a Person that is a
corporation authorized to carry on the business of a trust company in the
Province of Quebec and has a combined capital and surplus of at least
C$100,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a supervising or examining provincial
or federal authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.08, it will resign immediately in the manner and
with the effect hereinafter specified in this Article VII.
SECTION 7.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VII will become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 7.10.
(b) The Trustee may resign at any time with respect to the
Securities by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 7.10 shall not have been
delivered to the Trustee within 30 calendar days after the giving of such notice
of resignation, the resigning Trustee may at the expense of the Company petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities.
(c) The Trustee may be removed at any time with respect to
the Securities by Act of the Holders of a majority in principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If, at any time, (i) the Trustee fails to comply with
Section 7.07 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a
35
Security for at least six months, (ii) the Trustee ceases to be eligible under
Section 7.08 and fails to resign after written request therefor by the Company
or by any such Holder, or (iii) the Trustee becomes incapable of acting or is
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
is appointed or any public officer takes charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation, or
liquidation, then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to the Securities or (B) subject to Section
6.07, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable
of acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities, the Company by a Board Resolution will promptly
appoint a successor Trustee or Trustees with respect to the Securities (it being
understood that at any time there will be only one Trustee with respect to the
Securities) and will comply with the applicable requirements of Section 7.10.
If, within one year after such resignation, removal, or incapability or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
is appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 7.10,
become the successor Trustee with respect to the Securities and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 7.10, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated, at
the expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities.
(f) The Company will give notice of each resignation and
each removal of the Trustee with respect to the Securities and each appointment
of a successor Trustee with respect to the Securities to all holders of the
Securities in the manner provided in Section 12.03. Each notice will include the
name of the successor Trustee with respect to the Securities and the address of
its Corporate Trust Office.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities, every such successor Trustee so
appointed will execute, acknowledge, and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee will become effective and such
successor Trustee, without any further act, deed, or conveyance, will become
vested with all the rights, powers, trusts, and duties of the retiring Trustee,
but, on the request of the Company or the successor Trustee, such retiring
Trustee will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of
36
the retiring Trustee and will duly assign, transfer, and deliver to such Trustee
all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
will execute any and all instruments reasonably required to more fully and
certainly vest in and confirm to such successor Trustee all applicable rights,
powers, and trusts referred to in the preceding paragraphs of this Section 7.10.
(c) No successor Trustee will accept its appointment unless
at the time of such acceptance such successor Trustee is qualified and eligible
under this Article VII.
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION, OR SUCCESSION TO
BUSINESS
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee may be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee hereunder,
provided such corporation is otherwise qualified and eligible under this Article
VII, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.12. APPOINTMENT OF AUTHENTICATING AGENT
(a) The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities which will be authorized to act on behalf
of the Trustee to authenticate the Securities issued upon original issue and
upon exchange or registration of transfer thereof or pursuant to Section 2.07,
and the Securities so authenticated will be entitled to the benefits of this
Indenture and will be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference will be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of Canada or any province thereof authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not less
than C$50,000,000 and subject to supervision or examination by federal or
provincial authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 7.12,
the combined capital and surplus of such Authenticating Agent will be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in
37
accordance with the provisions of this Section 7.12, such Authenticating Agent
will resign immediately in the manner and with the effect specified in this
Section 7.12.
(b) Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion, or consolidation to which such
Authenticating Agent may be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation is otherwise
eligible under this Section 7.12, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 7.12, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder will become
vested with all the rights, powers, and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent will be appointed unless eligible under the provisions of
this Section 7.12.
(d) The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section
7.12.
(e) If an appointment with respect to the Securities is made
pursuant to this Section 7.12, the Securities may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative form of
certificate of authentication in the following form:
This is one of the Securities designated therein
referred to in the within-mentioned Indenture.
______________, as Trustee
Dated: By:
-------------------- ------------------------------
As Authenticating Agent
By:
------------------------------
Authorized Signatory
38
SECTION 7.13. TRUSTEE'S APPLICATION FOR INSTRUCTION FROM THE COMPANY
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action is proposed to be taken or such omission is
proposed to be effective. In the case of any proposed action or omission
expressly authorized by this Indenture, the Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three Business Days after the date any
officer of the Company actually receives such application by telecopy, e-mail,
or otherwise (provided that such receipt shall have been confirmed by the
Trustee), unless any such officer shall have consented in writing to any earlier
date) unless prior to taking any such action (or the effective date in the case
of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted.
ARTICLE VIII. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
SECTION 8.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF HOLDERS
Without the consent of or notice to any Holders, the
Company, the Guarantor and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company herein and in the Securities, all to the
extent otherwise permitted hereunder;
(b) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of the Securities or to surrender any
right or power herein conferred upon the Company or the Guarantor;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this
Indenture to such extent as may be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form;
(e) to add to, change, or eliminate any of the provisions of
this Indenture in respect of the Securities, PROVIDED that any such
addition, change, or elimination (i) will not modify the rights of the
Holders with respect to such provision or (ii) will become effective
only when there is no Security Outstanding;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities and to add to or change any of the
39
provisions of this Indenture as may be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.10; or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED that such
action pursuant to this clause (h) will not adversely affect the
interests of the Holders of the Securities in any material respect.
SECTION 8.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF AT
LEAST A MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING
SECURITIES
(a) With the consent of the Holders of a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company, the Guarantor, and the Trustee, the Company, the Guarantor, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of the Securities under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture will, without the consent of the Holder of each
Outstanding Security:
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, the Securities, or reduce
the principal amount thereof or the rate of interest thereon, or change
any place of payment where, or the coin or currency in which the
principal of or interest on the Securities is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof;
(ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of
which is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(iii) modify any of the provisions of this Section 8.02,
Section 6.01(d) or Section 4.09, except to increase the percentage in
principal amount of Holders required under any such Section or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security, PROVIDED, HOWEVER, that this clause (iii) will
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section 8.02 and Section 4.09, or the deletion of this proviso, in
accordance with the requirements of Sections 7.10 and 8.01(g).
40
(b) It will not be necessary for any Act of Holders under
this Section 8.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article VIII or the modifications
thereby of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 7.01) will be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but will not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties, or immunities under
this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this
Article VIII, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
SECTION 8.05. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article VIII may, and will if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for the Outstanding Securities.
ARTICLE IX. CONSOLIDATION, MERGER, SALE, OR TRANSFER
SECTION 9.01. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES
PERMITTED ONLY ON CERTAIN TERMS
(a) The Company shall not consolidate with or merge with or
into any other Person, or transfer (by lease, assignment, sale, or otherwise)
all or substantially all of its properties and assets to another Person unless
(i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred
(the Company or such other Person being referred to as the "Surviving Person")
shall be a corporation organized and validly existing under the laws of Canada
or any province thereof, and shall expressly assume, by an indenture
supplemental hereto, all of the obligations of the Company under the Securities
and the Indenture, (ii) immediately after the transaction no Default will exist,
and (iii)
41
an Officer's Certificate of the Company has been delivered to the Trustee to the
effect that the conditions set forth in the preceding clauses (i) and (ii) have
been satisfied and an Opinion of Counsel (from a counsel who shall not be an
employee of the Company) has been delivered to the Trustee to the effect that
the conditions set forth in the preceding clause (i) have been satisfied.
(b) The Surviving Person will succeed to and be substituted
for the Company with the same effect as if it had been named herein as a party
hereto, and thereafter the predecessor corporation will be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE X. SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture will upon a Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when: (a) either (i) all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost, or stolen and which have been replaced or paid
as provided in Section 2.07 and (B) Securities for the payment of which money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 4.03) have been delivered to the Trustee for cancellation or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation (A) have become due and payable or (B) will become due and payable
at their Stated Maturity within one year, and the Company, in the case of clause
(A) or (B) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity; (b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and (c) the Company has delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been satisfied. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 7.06, the obligations of the Trustee to any
Authenticating Agent under Section 7.12, and, if money shall have been deposited
with the Trustee pursuant to subclause (ii) of clause (a) of this Section 10.01,
the obligations of the Trustee under Sections 4.03(e) and 10.02, will survive.
SECTION 10.02. APPLICATION OF TRUST MONEY
Subject to provisions of Section 4.03(e), all money
deposited with the Trustee pursuant to Section 10.01 will be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
42
determine, to the Persons entitled thereto, of the principal and interest for
the payment of which such money has been deposited with the Trustee; and such
money shall be segregated from other funds to the extent required by law.
ARTICLE XI. GUARANTEE
SECTION 11.01. GUARANTEE
The Guarantor hereby unconditionally guarantees, to the
extent permitted by law, to each Holder of a Security executed by the Company
and authenticated by the Trustee and delivered as provided in this Indenture,
and to the Trustee on behalf of such Holder, that: (a) the principal of and
interest on the Securities will be promptly paid in full when due, whether at
Maturity, by acceleration, or otherwise, and interest on the overdue principal
of and interest on the Securities, if any, will be promptly paid in full in
accordance with the terms thereof and hereof and (b) in case of any extension of
time of payment or renewal of any Securities, the same will be promptly paid in
full when due in accordance with the terms of the extension or renewal, whether
at Maturity, by acceleration, or otherwise. Failing payment when due of any
amount so guaranteed for whatever reason, the Guarantor will be obligated to pay
the same immediately. The Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of any waiver or consent by any Holder of
the Securities with respect to any provisions of this Indenture or the
Securities. The foregoing Guarantee shall rank PARI PASSU in right of payment
with all other unsecured and unsubordinated indebtedness of the Guarantor.
The Guarantor shall be subrogated to all rights of each
Holder of the Securities against the Company in respect of any amounts paid to
the Holders by the Guarantor pursuant to the provisions of the Guarantee;
provided that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of and interest (including additional amounts, if any) on all the
Securities shall have been paid in full.
SECTION 11.02. EXECUTION AND DELIVERY OF GUARANTEE
To evidence its Guarantee set forth in Section 11.01 hereof,
the Guarantor hereby agrees that a notation of such Guarantee substantially in
the form set forth in the Form of Security in the Recitals hereto shall be
endorsed (manually or by facsimile) by an officer of the Guarantor on each
Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of the Guarantor by its Chairman, Vice Chairman,
President, Chief Executive Officer or one of its Vice Presidents and attested to
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary.
If an officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which a Guarantee is endorsed, the Guarantee shall be valid, binding
and enforceable nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the
43
Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guarantee.
SECTION 11.03. CONSOLIDATIONS AND MERGERS OF GUARANTOR AND SALES
PERMITTED ONLY ON CERTAIN TERMS
(a) The Guarantor shall not consolidate with or merge with
or into any other Person, or transfer (by lease, assignment, sale, or otherwise)
all or substantially all of its properties and assets to another Person unless
(i) either (A) the Guarantor shall be the continuing or surviving Person in such
a consolidation or merger or (B) the Person (if other than the Guarantor) formed
by such consolidation or into which the Guarantor is merged or to which all or
substantially all of the properties and assets of the Guarantor are transferred
(the Guarantor or such other Person being referred to as the "Guarantor
Surviving Person") shall be a corporation organized and validly existing under
the laws of the United States, any state thereof, or the District of Columbia,
and shall expressly assume, by an indenture supplemental hereto, all of the
obligations of the Guarantor under the Securities and this Indenture, (ii)
immediately after the transaction, no Default will exist, and (iii) an Officer's
Certificate has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a counsel who shall not be an employee of the
Guarantor) has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clause (i) have been satisfied.
(b) The Guarantor Surviving Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a party hereto, and thereafter the predecessor corporation will be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE XII. MISCELLANEOUS PROVISIONS
SECTION 12.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE
All the covenants, stipulations, promises, and agreements in
this Indenture contained by or on behalf of the Company will bind its successors
and assigns, whether so expressed or not.
SECTION 12.02. SERVICE OF REQUIRED NOTICE TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Holders, or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with (a) the Trustee
by any Holder, by the Company, or by the Guarantor will be sufficient for every
purpose hereunder if made, given, furnished, or filed in writing to or with the
Trustee at its Corporate Trust Office, (b) the Company by any Holder, by the
Trustee, or by the Guarantor will be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it care of
Louisiana-Pacific Corporation, 111 S.W. Fifth Avenue, Portland, Oregon
44
97204 (marked for the attention of both the Chief Financial Officer and the
General Counsel) or at any other address previously furnished in writing to the
Trustee by the Company, (c) the Guarantor by any Holder, by the Trustee, or by
the Company will be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Guarantor addressed to it at 111 S.W. Fifth Avenue, Portland,
Oregon 97204 (marked for the attention of both the Chief Financial Officer and
the General Counsel) or at any other address previously furnished in writing to
the Trustee by the Guarantor.
SECTION 12.03. SERVICE OF REQUIRED NOTICE TO HOLDERS; WAIVER
Where this Indenture provides for notice to Holders of any
event, such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder will affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by Holders
will be filed with the Trustee, but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as may be made with the approval of the Trustee will constitute a
sufficient notification for every purpose hereunder.
SECTION 12.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK
This Indenture and the Securities will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
SECTION 12.05. COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company or the
Guarantor to the Trustee to take any action under any of the provisions of this
Indenture, the Company or the Guarantor, as applicable, will furnish to the
Trustee such certificates and opinions as may be required by this Indenture.
Each such certificate or opinion will be given in the form of an Officer's
Certificate, if to be given by an officer of the Company or the Guarantor, as
applicable, or an Opinion of Counsel, if to be given by counsel, and will comply
with any other requirements set forth in this Indenture.
45
SECTION 12.06. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 12.07. PAYMENTS DUE ON NON-BUSINESS DAYS
In any case where any Interest Payment Date or Maturity Date
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day, without
additional interest, with the same force and effect as if made on the applicable
Interest Payment Date or Maturity Date, as the case may be.
SECTION 12.08. INVALIDITY OF PARTICULAR PROVISIONS
In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such validity, illegality, or enforceability will
not affect any other provision of this Indenture or of the Securities, but this
Indenture and such Securities will be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein or therein.
SECTION 12.09. INDENTURE MAY BE EXECUTED IN COUNTERPARTS
This instrument may be executed in any number of
counterparts, each of which will be an original, but such counterparts will
together constitute but one and the same instrument.
SECTION 12.10. ACTS OF HOLDERS; RECORD DATES
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company or the Guarantor. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent will be
sufficient for any purpose of this Indenture and (subject to Section 7.01)
conclusive in
46
favor of the Trustee, the Company or the Guarantor, if made in the manner
provided in this Section 12.10.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Security will bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu thereof
in respect of anything done, omitted, or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may set any day as the record date for the
purpose of determining the Holders of Outstanding Securities entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver, or
other action provided or permitted by this Indenture to be given or taken by the
Holders. With regard to any record date set pursuant to this paragraph, the
Holders on such record date (or their duly appointed agents), and only such
Persons, will be entitled to give or take the relevant action, whether or not
such Holders remain Holders after such record date. With regard to any action
that may be given or taken hereunder only by Holders of a requisite principal
amount of Outstanding Securities (or their duly appointed agents) and for which
a record date is set pursuant to this paragraph, the Company may, at its option,
set an expiration date after which no such action purported to be given or taken
by any Holder will be effective hereunder unless given or taken on or prior to
such expiration date by Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents). On or prior to
any expiration date set pursuant to this paragraph, the Company may, on one or
more occasions at its option, extend such date to any later date. Nothing in
this paragraph will prevent any Holder (or any duly appointed agent thereof)
from giving or taking, after any such expiration date, any action identical to,
or, at any time, contrary to or different from, the action or purported action
to which such expiration date relates, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Nothing in this
Section 12.10(e) will be construed to render ineffective any action taken at any
time by the Holders (or their duly appointed agents) of the requisite principal
amount of Outstanding Securities on the date such action is so taken.
Notwithstanding the foregoing, the Company will not set a record date for, and
the provisions of this Section 12.10(e) will not apply with respect to, any
notice, declaration, or direction referred to in the next paragraph.
47
(f) Upon receipt by the Trustee from any Holder of
Securities of (a) any notice of default or breach referred to in Section
6.01(a)(iii) with respect to the Securities, if such default or breach has
occurred and is continuing and the Trustee shall not have given such notice to
the Company, (b) any declaration of acceleration referred to in Section 6.01(b),
if an Event of Default with respect to the Securities has occurred and is
continuing and the Trustee shall not have given such a declaration to the
Company, or (c) any direction referred to in Section 6.06 with respect to the
Securities, if the Trustee shall not have taken the action specified in such
direction, then a record date will automatically and without any action by the
Company or the Trustee be set for determining the Holders of the Outstanding
Securities entitled to join in such notice, declaration, or direction, which
record date will be the close of business on the tenth calendar day following
the day on which the Trustee receives such notice, declaration, or direction.
Promptly after such receipt by the Trustee, and in any case not later than the
fifth calendar day thereafter, the Trustee will notify the Company and the
Holders of the Outstanding Securities of any such record date so fixed. The
Holders of the Outstanding Securities on such record date (or their duly
appointed agents), and only such Persons, will be entitled to join in such
notice, declaration, or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that, unless such notice, declaration, or
direction shall have become effective by virtue of Holders of the requisite
principal amount of the Outstanding Securities on such record date (or their
duly appointed agents) having joined therein on or prior to the 90th calendar
day after such record date, such notice, declaration, or direction will
automatically and without any action by any Person be canceled and of no further
effect. Nothing in this Section 12.10(f) will be construed to prevent a Holder
(or a duly appointed agent thereof) from giving, before or after the expiration
of such 90-day period, a notice, declaration, or direction contrary to or
different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which
event a new record date in respect thereof will be set pursuant to this Section
12.10(f). Nothing in this Section 12.10(f) will be construed to render
ineffective any notice, declaration, or direction of the type referred to in
this Section 12.10(f) given at any time to the Trustee and the Company by
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities on the date such notice, declaration, or direction is so
given.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 12.11. EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of
Contents are for convenience only and will not affect the construction hereof.
48
SECTION 12.12. BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy, or claim under this Indenture.
SECTION 12.13. LANGUAGE
The parties hereto have specifically requested that this
Indenture and all documents and notices related thereto be drafted in the
English language. LES PARTIES AUX PRESENTES ONT EXPRESSEMENT DEMANDE QUE CETTE
CONVENTION AINSI QUE TOUS LES DOCUMENTS ET AVIS QUI S'Y RATTACHENT ET QUI EN
DECOULENT SOIENT REDIGES DANS LA LANGUE ANGLAISE.
--------------------
49
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] LOUISIANA-PACIFIC ACQUISITION INC.
By: /s/ Curtis M. Stevens
---------------------------------
Name: Curtis M. Stevens
Title: Vice President Finance
Attest:
/s/ Gary C. Wilkerson
- -------------------------------
Name: Gary C. Wilkerson
Title: Secretary
[Seal] LOUISIANA-PACIFIC CORPORATION
By: /s/ Curtis M. Stevens
---------------------------------
Name: Curtis M. Stevens
Title: Vice President, Treasurer
and Chief Financial Officer
Attest:
/s/ Gary C. Wilkerson
- -------------------------------
Name: Gary C. Wilkerson
Title: Vice President
50
[Seal] LAURENTIAN TRUST OF CANADA INC.
By: /s/ Richard Guay
--------------------------------
Name: Richard Guay
Title: General Manager
Attest:
/s/ Jean Lessard
- -------------------------------
Name: Jean Lessard
Title: Control Officer
51